McCartney v Abdirahman-Khalif (No 2)
[2020] FCA 1002
•17 July 2020
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 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
2nominates 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;
2explains 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:
1in 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);
2in 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
3in 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).
REASONS FOR JUDGMENT
CHARLESWORTH J:
INTRODUCTION
On 22 November 2019, this Court made an Interim Control Order (ICO) against the respondent under s 104.4 of the Criminal Code Act 1995 (Cth). The Court gave oral reasons for making the ICO on the date it was made. Written reasons were later published as McCartney v Abdirahman-Khalif [2019] FCA 2218. The ICO has been varied by consent on a number of occasions before and after the reasons were published.
The applicant is a member of the Australian Federal Police (AFP). He has elected to confirm the ICO under s 104.12A of the Code and has informed the Court of his election. He now asks the Court to confirm the ICO in the exercise of its powers under s 104.14 of the Code.
I have concluded that the ICO should be varied to the extent described in these reasons. Subject to those variations, the ICO should now be confirmed.
THE CODE
Division 104 of the Code is titled “Control orders”. Its objects are set out in s 104.1:
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 procedural preconditions to the making of a Confirmation Order are satisfied in this case. It is unnecessary to set them out here.
Section 104.14(1) specifies the persons who may adduce evidence or make submissions in relation to the confirmation of an ICO. The Court must take judicial notice of the fact that the original request for the ICO was made in particular terms: s 104.14(3A)(a). However, in determining whether to confirm the ICO, the Court may only take action on evidence adduced, and submissions made under s 104.14(1). The effect of these provisions is that the Court’s decision at the confirmation stage is to be based on a different evidentiary footing to that which supported the making of the ICO. In contrast to the hearing of the request for the ICO, the confirmation hearing is not interlocutory in nature: s 104.28A(2).
Under s 104.14(7) of that Code that 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).
These provisions pick up two of the same essential conditions for making the ICO. The first, contained in s 104.4(1)(c), is that:
(c) the court is satisfied on the balance of probabilities:
(i)that making the order would substantially assist in preventing a terrorist act; or
…
(vi)that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or
…
The other matters referred to in s 104.4(1)(c) are not relied upon by the applicant.
The other essential condition for making the order is that contained in s 104.4(d), relevantly:
(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
…
For the purposes of that paragraph, in determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the Court must take into account the objects of Div 104 as a paramount consideration (s 104.4(2)(a)) as well as the impact of the obligation, prohibition or restriction on the person’s circumstances (including the person’s financial and personal circumstances) (s 104.4(2)(c)).
The reference in these provisions to a terrorist act includes (s 104.2(6)):
(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.
See s 104.4(4).
The phrase “terrorist act” is defined in s 100.1(1) to mean 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.
An action falls within subs (2) if the action:
(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.
An action falls within subs (3) 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.
Critical to the definition of a “terrorist act” is the requirement that there be an action or threat of action of a particular kind. Division 104 is not concerned to prohibit political, ideological or religious thought in and of itself. As Gleeson CJ observed in Thomas v Mowbray (2007) 233 CLR 307 at [8]:
… The definition of terrorist act (s 100.1) requires three elements for an action or threat of action to be a terrorist act. First, the action must fall within a certain description, and must not be of a kind excluded by another description. The inclusory aspect of the definition is that the action must (to put it briefly) cause death, serious physical harm, or serious damage to property, endanger life, create a serious risk to public health or safety, or seriously interfere with or disrupt certain vital systems. The exclusory aspect of the definition excludes advocacy, protest, dissent or industrial action that is (to put it briefly) not intended to cause death or serious injury, or endanger life or public safety. The second necessary element is that the action is done, or the threat of action is made, with the intention of advancing a political, religious or ideological cause. The third necessary element is that the action is done, or the threat of action is made, with the intention of coercing, or influencing by intimidation (to put it briefly), a government, or of intimidating the public or a section of the public.
In Thomas v Mowbray, the High Court by majority rejected an argument that the power to make an Interim Control Order under subdiv B of Div 104 of the Code was antithetical to the judicial function and could not be conferred on the federal judiciary consistently with Ch III of the Constitution. Among other things, the plaintiff, Mr Thomas, had argued that the standards of “reasonably necessary” and “reasonably appropriate and adapted” were inherently too vague for use in judicial decision making. Rejecting that submission, Gleeson CJ (at [19]) described the task under s 104.4 as one that required the Court to:
… make findings that may relate to whether one or more persons are contemplating a terrorist act, whether or not a person has skills, information or other resources that could be employed by the persons who are contemplating a terrorist act to achieve their purpose, and whether the subject of the proposed order has received terrorist training. …
His Honour continued:
The court must make inferences and predictions as to whether the skills, information or other resources of the subject of the proposed order are capable of facilitating the commission of the contemplated terrorist act, whether the persons planning a terrorist act are likely to be able to make use of those skills or other resources, and whether the making of a control order would substantially assist in preventing the terrorist act. 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.
(footnote omitted)
His Honour said that the phrase “reasonably necessary” is a familiar test in judicial decision-making. It requires the Court to consider whether the obligation, prohibition or restriction imposes “a greater degree of restraint than the reasonable protection of the public requires”: Thomas v Mowbray at [22]. The phrase reflects an underlying policy consideration that the degree of curtailment of the subject’s civil liberties properly reflect the nature and degree of the identified risk.
It is a criminal offence to contravene a Control Order: Code, s 104.27. In addition, the powers of this Court to punish for contempt for a breach of its order are not excluded by Div 104 of the Code: Thomas vMowbray at [51] (Gummow and Crennan JJ). The principle of construction is that stated in Electric Light and Power Supply Corporation Ltd v Electricity Commission (NSW) (1956) 94 CLR 554 at 560:
When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all of its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality.
It should also be emphasised that the power to confirm the ICO is discretionary. There is nothing to indicate that the word “may” in s 104.14 is intended to be used in an imperative sense: see Acts Interpretation Act 1901 (Cth), s 33(2A). The Court retains a residual discretion. In the exercise of the discretion, it is permissible to take into account matters such as the logicality of the orders when read as a cohesive whole against the background of the general law, the extent to which each Control has utility when considered in the context of the others, and the extent to which the identified risk may be managed by other means.
The maximum duration of a confirmed Control Order is 12 months from the day on which the ICO was made: s 104.5(1)(f). In the present case, the 12 month period will expire on 22 November 2020. The delay in proceeding to a confirmation hearing is explained by a series of adjournments granted at the respondent’s request, prompted in part by a change in her legal representation.
FINDINGS
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.
The primary facts set out in the three statements of agreed facts should be understood as proven in their precise terms, whether or not they are specifically referred to. I am satisfied that the primary facts recorded below have sufficient support in the evidentiary material as cross referenced in the submissions.
The inferences that may be drawn from the primary facts dealt with separately at [131] – [161] below.
Primary facts
Islamic 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.
Between 23 November 2014 and 23 July 2015, the respondent used an Apple iPhone 5 (the iPhone 5). The respondent backed-up the iPhone 5 to a profile set up in her own name on her MacBook laptop, which identified the iPhone 5 as “Zainab’s iPhone”.
The respondent identifies as a Sunni Muslim.
Access to online material
In the period between 23 November 2014 and 23 July 2015, the respondent’s iPhone 5 was used to access blogs on a micro-blogging website called Tumblr. The blogs discussed topics including Islamic State, the obligations of jihadis and life inside Islamic State controlled areas such as al-Raqqa in Syria. The blogs also provided advice on how a person (particularly a woman) intending to travel to those areas should prepare, in terms of packing items and evading detection by authorities and family members. For example:
(1)On 23 November 2014, the respondent used the iPhone 5 to access a blog attributed to “Amir al-Mu’mineen Abu Umar al-Hussaini al-Baghdadi al-Quraishi – First Emir of the Islamic State”. The blog discussed the beliefs of Islamic State, particularly as it concerned Shia Muslims and others it considered to be apostates. It stated a belief that there was an obligation to kill “practitioners of witchcraft who are apostates and have become infidels”. It further stated “We believe those who defend the Infidel/apostate rulers are also apostates, as are those who help them (rulers) with any type of defense or aid; such as clothing, food, medicine or anything else that can strengthen their position. So, his actions (helping apostate rulers) thus, will become the justification/reason for us to shed his blood (due to his apostasy)” and that “we believe that Jihad fisabilillah (fighting in the path of Allah) is an obligation upon every single Muslim in the effort to liberate occupied Muslim lands”.
(2)On 28 March 2015, the respondent used the iPhone 5 to access a blog attributed to “Umm Uthman”, a female resident in Al-Raqqa, Syria. The author stated that the blog was being made to “show you sisters how life is like here is [sic] dar al Islam and to prepare you as best I can”. The post concluded “May Allah azza wa jal allow this blog to be a means of benefit to my sisters and to bring you here to the Islamic state to the true justice of Islam”.
(3)Later on 28 March 2015, the respondent used the iPhone 5 to access a blog which commenced, “Heres [sic] a list me and a group of sisters made of what you should pack on your hijrah to the Islamic state. May Allah bring anyone who is sincere here safe and well”. The list included winter clothing, running shoes and boots, toiletries for a month, stretchable t-shirts to accommodate future pregnancies, makeup, torch or LED lights, hijab, niqab, 2 black skirts, undergarments, toothpaste, comfortable pyjamas and flip flops. The blog included advice to bring hand luggage only unless taking a direct flight, and to delete all Islamic content and Telegram from mobile phones prior to travelling. It said “Remember you will be running in your hand luggage across the border so be smart-you need back pack”. Elsewhere it referred to transiting through Turkey and arriving in “Raqqa”.
(4)Later on 28 March 2015, the respondent used the iPhone 5 to access a blog which commenced “Hijrah-what to bring if your going to study at the medical college (doctors needed)”. It discussed what textbooks should be brought on hijrah and what would be provided at the college. It closed “Sisters stuck in dar al kufr hoping to come. Please make use of your time in studying medicine. I know its difficult being stuck home but renew your intentions and work hard the sake of Allah. Dawlah needs your commitment, especially sisters in the medical field”.
(5)Later on 28 March 2015, the respondent used the iPhone 5 to access a blog which discussed getting married before making hijrah and the accommodation for unmarried women who arrived in the Islamic State territory. It observed that medical students could reside in a dorm.
(6)Later on 28 March 2015, the respondent used the iPhone 5 to access a blog which discussed hijrah and setting up a home after arrival in Islamic State territory, including the supply of food and a furnished apartment. It closed “Can you even imagine a state that cares so much for its people? Whose priority, spending, concern are you? This is the Islamic state and their concerns are the ummah”.
(7)On 2 April 2015, the respondent used the iPhone 5 to access a blog which recounted the female author’s arrival in Islamic State territory after crossing “the border” in a group of 17. It noted that all electronic devices were taken on arrival and observed “… you could be there for days to weeks with no communication with the outside word which is scary seeing as most parents still haven’t been told where there [sic] child is”. It stated “May allah take our souls as shuhada and put it in the bodies of green birds. Ameen. We met amazing sisters all different nationalities from moroccan to Australian to Indonesian in the maqqar”.
(8)On 7 April 2015, the respondent used the iPhone 5 to access a blog “written by Abu Usamah as-Somali”, which discussed the obligatory nature of jihad and specified that this meant “going out and confronting the kuffaar directly; with one’s wealth, which means spending on what is required for jihad such as weapons etc…” The blog contended that “it is obligatory for women to take part in jihad by means of their wealth if they have excess [sic] to wealth”, and went on to state “For those who are unable to migrate to the Islamic State but have the ability to support the Jihad and the Muhajireen. This is the next best thing you can do aside from striking the enemies in Dar al-Kufr”.
(9)On 8 April 2015, the respondent used the iPhone 5 to access a blog which discussed relationships with family after leaving them behind to make hijrah to the Islamic State.
(10)On 10 April 2015, the respondent used the iPhone 5 to access a blog which discussed marriage in “the State” between women who have made hijrah and the men who far outnumber them.
(11)On 28 April 2015, the respondent used the iPhone 5 to access a blog “By Abu Sa’eed Al-Britani”. The article opened “I felt that I should also give a glimpse into the lives of other Mujahideen here in Sham. These souls have gone forward and are now, bi ithnillaah, in the hearts of green birds”. It recounted the author’s recollections of jihadists in Raqqa and the surrounding region who had been martyred.
(12)On 5 May 2015, the respondent used the iPhone 5 to access a blog “By Abu Sa’eed Al-Britani” discussing weaponry in the Sham. It commented “If you truly know the reward of killing a Kaafir, then you would pick up any gun and run towards the Kaafir with a smile of joy on your face”.
(13)Later on 5 May 2015, the respondent used the iPhone 5 to access another blog “By Abu Sa’eed Al-Britani” discussing duties of soldiers in Sham, including their “vital role in ensuring the Caliphate does not decrease in size”.
(14)On 10 June 2015, the respondent used the iPhone 5 to access a blog which referred to an article written by “Journalist Huyssein Al-Maadidi … About his trip to the Islamic State; his encounter with Islamic State mujahidin” which had been translated into English.
(15)On 13 June 2015, the Respondent used the iPhone 5 to access a blog which stated:
Know that in Jihad is the best in Dunya, Akhirah, and in leaving jihad there is a loss in Dunya
Do you await for us except on of the two best things
Meaning either victory or martyrdom leading to paradise, so whoever lives from the mujahidin lives an honourable life in Dunya.
(16)On 17 June 2015, the respondent used the iPhone 5 to access a blog “By Abu Sa’eed Al-Britani” which discussed concerns which “sisters may have about coming to Sham”. The blog purported to explain, amongst other things, that “Dawlah is a State which is expanding every week in a balloon-like fashion, and all the deaths, killings, bombs etc. happen on the borders of the State in our ribat points”.
(17)Later on 17 June 2015, the respondent used the iPhone 5 to access another blog “By Abu Sa’eed Al-Britani” which contained advice to the “Muhajirahs”, wives to the Mujaahid. The blog advised Muhajirahs to understand that the life of a Mujaahid is stressful, stating that “The blood he sees, the body pieces he walks over on the battlefield, the friends he loses, the disrupted sleep he gets, all of this is sufficient to make anyone break… So when your husband returns from the front lines, do not burden him with complaints… Some brothers end up wishing they could go for a martyrdom operation after marriage due to the stress some sisters cause them. Do not be like this”.
(18)On 2 July 2015, the respondent used the iPhone 5 to access a blog “By Abu Sa’eed Al-Britani” which provided advice on preparations for travelling to Sham. The blog advised readers to save cash, although it also stated “however, even if you have nothing let this not be a reason to delay your hijrah and jihad as when the call to arms is made, you are required to come, whether light or heavy”. The author further advised readers to learn “military first aid” (noting that “[t]here have been a few cases where some brothers bleed to death due to the brothers around them not knowing the correct procedure on how to deal with injuries”), keep fit, learn Arabic, not overburden themselves with baggage and that “Once you arrive in Turkey airport, you need to get out and moving to your next destination as soon as possible as the Turkish police are arresting those who look suspicious. Being lightly packed helps here especially if you look like any other tourist. Furthermore, when crossing the border between Turkey and Sham, it can be somewhat difficult if you have extra baggage to run with”. Winter clothes were recommended. It noted that “the souk of Raqqa has almost everything you need”.
(19)On 16 July 2015, the respondent used the iPhone 5 to access a blog which discussed life with Islamic State. The blog stated “When I arrived in Sham in February last year, I was so happy and believed that Allah had finally answered my prayers and I felt safe” and that “Living in the Islamic State. My family accepted my decision. Married to a Mujahid. Blessed with a child”.
(20)On 19 July 2015, the respondent used the iPhone 5 to access a blog which concerned an “Islamic State fighter (originally from Saudi Arabia) singing a nasheed”. The blog stated that “this brother attained martyrdom few days ago”.
(21)On 22 July 2015, the respondent used the iPhone 5 to access a blog containing “a list of things to bring if you are planning to make hijrah soon”. The list includes winter clothes, boots, hat, scarf and undergarments. The blog noted that “if you are Somali you know what a baati is (light house dress)”. It also listed medications, and “at least one jihab in your suitcase and one in the bag you are carrying with you once you are about to cross, preferably in black”. Under the heading “Electronics”, the blog recommended “Android Phone (No Apple. No iPhones/iPads/Macs etc they aren’t allowed here so sell them beforehand” a portable charger (solar and rechargeable) and other items. The blog stated “If you are planning hijrah on your own it’s best to be as discrete as possible, even if you think you can trust someone. It is best to wait until you actually reach until you break the news if that’s what you decide” and recommended readers to “Avoid searching things from your home wi-fi and devices you plan to bring, this way you have nothing that can be held against you in the case you were caught”.
(22)Later on 22 July 2015, the respondent used the iPhone 5 to access a blog addressing “sisters who keep asking questions regarding life in the Islamic State”. The blog provided answers to questions including “what will happen after I reach Turkey?” and “What happens next after I cross the border?”.
(23)Later on 22 July 2015, the respondent used the iPhone 5 to access a blog which contained further advice regarding hijrah. It provided advice under headings such as “Keep it Secret”, “Delete Everything” (under which it advised to “Just delete all the nasheed, videos, pictures, messages etc”), “Travel Route”, “What to Pack” and “Don’t contact your family until you have crossed the border”.
(24)Later on 22 July 2015, the respondent used the iPhone 5 to access a blog from a woman in Islamic State territory which was addressed to women who remain in “Dar-ul Kufr”.
(25)Later on 22 July 2015, the respondent used the iPhone 5 to access a blog “By Abu Sa’eed Al-Britani” entitled “Why should a Muslimah migrate to Sham”. The blog called for women to undertake hijrah as an obligation and to preserve their dignity. The blog stated:
…by migrating to Sham you are not just benefitting yourself but you are also benefitting the Islamic State in its expansion and advancement. By raising your kids here, you are increasing its population and hence creating more Mujaahideen of the future. A society cannot survive without inhabitants and just by you living in Sham you are helping its economy grow.
(26)On 23 July 2015, the respondent used the iPhone 5 to access a blog concerning Sharia law, Islamic State and the punishments prescribed for various religious offences including death.
Around May 2016, the respondent replaced the iPhone 5 with a non-Apple device – namely, a Samsung Galaxy S6 (the Samsung S6). The Samsung S6 was seized on 14 July 2016. The respondent told AFP agents that she was the only person who used the Samsung S6 and that it was her personal mobile phone.
Prior to the respondent’s attempted travel, the Samsung S6 was used to download an application called “Telegram”, a messaging and telephone service offering end-to-end encryption to its users. The Telegram app allows users to send messages, photos, videos and files of any type to other Telegram users, including within groups.
Items located on the Samsung S6 included audio files purporting to be published by or on behalf of Islamic State in the form of nasheeds. Imagery linked to the files included flags used by persons claiming an association with Islamic State, including the branding of the al-Hayat Media Centre.
One of the nasheeds located on the respondent’s Samsung S6 celebrates becoming a martyr and includes lyrics such as “Shroud me with my blood because it is my pride and honour” and “Don’t treat my bleeding injuries and bury with my weapons”. Another includes the lyrics “Stand up for the call of the Jihad / Because it is of its pride and honour if we answer it / Victorious who get the martyrdom the honest way / His sense will be erased when his blood is shared / When the flowers perfumed with its scent from the injuries…”.
Another of the nasheeds begins:
My vision is moving between going forward or hesitating
The operation stimulates my spirit to drive me to my death
Even my life will be longer but I am going to death even I don’t like the death
So why am I not having the death under my sword with glory
Islamic State I am coming like a thunderous rumble
I am drinking from the pond of the death
Terrorising the infidels, healing
I am continuously stabbing the enemy
Cutting the head in a violent way.
Another included the following lyrics:
Extreme fight and you will see
The battle will be on your land
For the sake of your destruction my sword is sharpened
We walk with the sword to cut off and slaughter
With a revenge knife on the top of the throat
With night ghosts with terrifying youths
With a massive explosion to destroy you, to destroy you.
Another begins (and repeats several times):
Hur Al Ayn calling me, let me go mother let me go
Oh my mother don’t let you tears down
It will not let me change my mind
Oh mother my path is clear
And my heart is walking happily
War and jihad ignited blood with honoured is spread.
Also located on the Samsung S6 was a large amount of Islamic religious material and other media, including images of weapons and Islamic State videos.
On 2 May 2016, the respondent used the Samsung S6 to film herself on the front porch of her home. In the short film, the respondent wore a black niqab and brown jilbab while a nasheed entitled “Walked Alone in the Dark” played in the background. That nasheed opens with the phrase: “He walked in the dark alone towards the land of Jihad”.
The lyrics that played while the respondent filmed herself were “The thoughts went around inside him, how are you going to forget your parents. How are you going to leave them dismayed and filial devotion is your duty”.
On 6 May 2016 at around 7.38pm, the respondent used the Samsung S6 to take a photograph of herself in her bedroom wearing female Islamic dress, with her right arm raised and pointing her right index finger toward the ceiling. This pose is known as the “one finger salute”. It frequently appears in pro-Islamic State propaganda.
A significant volume of other Islamic State material and propaganda was located on the Samsung S6. This includes videos depicting executions, including a video of Islamic State child soldiers executing prisoners and giving the one finger salute.
Communications with the Mombasa Group
By around 3 May 2016, the respondent was in communication with a group of three young women in Mombasa, Kenya, named Tasnim Farah (Farah), Maimuna Hussein (M Hussein) and Ramla Hussein (R Hussein) (the Mombasa Group). She communicated with the Mombasa Group using Telegram and WhatsApp. Contacts stored in the Samsung S6’s Telegram account included a Kenyan telephone number of each member of the Mombasa Group.
In their communications, the Mombasa Group used nick names or “kunyas”.
Between 3 May 2016 and 18 July 2016, the respondent called (or attempted to call) M Hussein and M Hussein called (or attempted to call) the respondent. There were at least 10 calls (or attempted calls) over that period.
From about 5 May 2016, the respondent also used the Samsung S6 and the Telegram app to participate in a private chat group named “Baqiyaa Sisters”. This chat group had four members, three of whom were the respondent, R Hussein and Farah. Islamic State media was shared in the “Baqiyaa Sisters” chat group, and the group used an image of the Islamic State flag as its backdrop. On 8 February 2017, the respondent was lawfully recorded describing the “ISIS flag” used by this group.
Between 15 May 2016 and 24 May 2016 the respondent used the Telegram app to participate in another chat group named “Naughty Sisters”. This chat group had four members, three of whom were the respondent, R Hussein and Farah. The “Naughty Sisters” chat group used the same image of the Islamic State flag as its backdrop as was used by the “Baqiyaa Sisters” group. Material posted to the “Naughty Sisters” chat group included a video called “Mujahideen Moments” from the Somalia and Kenya based Islamic Extremist group Al-Shabab. The video depicts persons calling for the creation of an Islamic State in Somalia and Kenya. It also features sermons by Sheik Aboud Rogo, a deceased Mombasa-based extremist. In another Islamic State video shared on the “Naughty Sisters”, chat group several women shared their experiences of living in Islamic State controlled territory.
The profile picture used by each of Farah, M Hussein and R Hussein on Telegram was a photo of Abu Omar al-Shishani, a former Minister of War for Islamic State.
In a police interview on 8 February 2017, the respondent described both Farah and M Hussein as friends.
Attempt to travel to Syria to join IS
On 13 July 2016, the respondent booked a one way ticket with Singapore Airlines to travel to Turkey, via Singapore on the following day. The cost of the ticket was $USD911.31.
The next day, the respondent withdrew $130 from her Commonwealth Bank account, leaving a balance of $14.38 in credit. She then attended the Singapore Airlines counter at Adelaide Airport, checked in for the flight from Adelaide to Singapore and obtained her boarding pass. The respondent did not check in any luggage with Singapore Airlines.
On her outgoing passenger card, the respondent stated she was travelling to Turkey for seven days, and that the main reason for her overseas travel was a holiday.
The respondent was prevented from boarding her flight by Australian Border Force (ABF) officials. During an examination of her carry-on luggage by ABF officials, various items were located including an Australian citizenship document, $AUD183 in cash, a printed accommodation booking, female clothing, including a niqab, black gloves and 2 black skirts, and the Samsung S6. The respondent was also carrying a handbag containing a power adaptor and a plastic bag with toiletries.
The respondent told an ABF official she was travelling on her own to Turkey with no return ticket.
On the same day the respondent was arrested and interviewed by members of the AFP on suspicion that she was intending to travel to a declared area in Iraq or Syria. During the recorded interview, the respondent stated (amongst other things):
(1)She was going to Istanbul for a holiday. She had decided to go a month ago.
(2)She was going to see the city and find out if there were any organisations looking for aid workers.
(3)She could not name the particular sights she wished to see in Istanbul.
(4)She was booked for two nights at a hotel. She could not remember the name of the booking. The hotel would cost $74 for the two nights with food.
(5)She wasn’t going to go anywhere else and had no contacts.
(6)Her family would not let her join aid worker organisations and that is why she wasn’t letting them know about her travel. She had heard of an Australian whose passport was cancelled and that is why nobody knew about her travel, including her parents.
(7)She had booked the airline ticket the day before travelling because she had “decided that time”.
(8)She could not speak Turkish.
(9)She could easily find aid workers through YouTube, such as an organisation named One Nation, from the UK.
(10)She expected that the aid organisation would support her.
(11)The research she had done was watching videos of aid workers on YouTube.
(12)She had not contacted any aid agencies in Turkey because she thought she had to travel there first.
(13)She had applied at the Red Cross a month ago as a volunteer and was declined.
(14)She had not been in contact with anyone in Syria or Iraq.
(15)She would not go to another war torn country when her country was war torn.
(16)She did not support terrorist organisations. She had nothing to do with Islamic State.
Following the interview, the respondent was released from custody without charge.
On 15 July 2016, the day after the respondent’s attempted departure from Australia, the number used by M Hussein sent a cartoon image of a crying child to the respondent. On 17 July 2016 two further messages were sent from the same number saying “I miss you”.
On 18 July 2016, members of the Joint Counter Terrorism Team (JCTT) went to the home of the respondent and returned the Samsung S6 to her. Within around 20 minutes of the departure of the JCTT from her home, the respondent messaged M Hussein saying:
Sister, peace be upon you too. Sorry. Don’t talk. It is. House. [ … ] I am at. Supplicate for me. Don’t talk dear sister. Pass my greetings/regards. All the people. My mobile phone. Now. Peace be upon you? Sister, peace be upon you too. Sorry.
Terrorist attack by the Mombasa Group
On 11 September 2016, three members of the Mombasa Group (with whom the respondent had communicated) were killed whilst carrying out a terrorist attack in the name of Islamic State, in Mombasa, Kenya. On that day, at around 10.30am, the three members of the Mombasa Group, each wearing a hijab, entered the Mombasa police station. One of the officers requested they remove their hijabs. Two of the women complied with the request.
The women were armed with knives and carrying petrol in containers. Shortly after entering the police station one of the women stabbed a police officer and wrestled with him whilst she attempted to remove his firearm from its holster. The other women doused the police station with petrol and set it alight, causing a large explosion.
Throughout the course of the attack the three women were heard to shout, in Swahili, “Allah Akbar”, “Unbeliever”, “We have come to kill you non-believers”, “Infidels, we will finish you all”, “Infidels, we will kill you”, and “Kill me or I will kill you”. Farah was observed to be wearing a wrist band with the word “Baaqiyah” printed on it, being the same name as the Telegram chat group in which the respondent, R Hussein and Farah were members.
The three women died at the scene. Two of them were shot dead by police officers and the third died from complications from burns she sustained from the fire.
In the days following the attack a handwritten note written by M Hussein was published on a Twitter account with the title, “The letter of 3 women who attacked yesterday Kenyan’s Central Police Station, Pledge Allegiance to ISIS”. The handwritten note contained the names “Umm Maysarah, Umm Ma’bad, Umm Sa’ad” and included the following text:
A Message to the Kuffar: We say to you, O filthy ones, ‘Indeed, we are disassociated from you and from whatever you worship other than Allah. We have denied you, and there has appeared between us and you animosity and hatred forever until you believe in Allah alone.’ By Allah, peace and security will only be wishes for you, especially when you’ve taken it upon yourselves to fight and oppress the true Muslims. You expect to live in peace while you kill us and fill your prisons with our brothers and sisters? Know that the Islamic State soldiers are everywhere and by Allah, we will take revenge. Even if it takes a while, we will take revenge.
Responsibility for the attack was publicly claimed by Islamic State in the publication Rumiyah, under the heading “A Message from East Africa”. The article included the text set out above, as well as the following editorial comment:
If there are any men of this Ummah, who have not yet taken their stand against kufr by waging jihad for Allah’s cause and who truly care about fulfilling their duties to their Lord, they must march forth without delay. They can take their example from the countless thousands of men who have sacrificed themselves for Islam throughout the ages, or they can take a lesson from their courageous sisters. These men can learn what it means to be sincere to Allah by reading the last testament of their sisters in Kenya who have joined the ranks of the shuhada – we consider them so, and Allah is their judge.
On 16 September 2016, the respondent listened to a news report concerning the father of the Mombasa attackers wanting to bury his daughters.
On 22 September 2016, the JCTT executed a search warrant at the respondent’s residence. Police located, amongst other things, a binder book titled “Umm Baraa :) Year 2016 Subject: Sahaba Book, School Baqiya”, one page of which contained a series of handwritten telephone numbers including Kenyan country code +254, some of which were scribbled over. The scribbled over numbers included the numbers for each of M Hussein, R Hussein and Farah. In a police interview on 8 February 2017, the respondent told police that the numbers were written down in her exercise book so that she could save them into her phone when it was replaced. She said that the numbers were crossed out because of how she felt in the moment.
Further engagement with extremist material
On 22 September 2016, police also located at the respondent’s residence another binder book titled “Zeinab (Umm Baraa :) Year 2016, Subject Seerah, School Imam Anwar Al-Awlaki RH :)”. Anwar Al-Awlaki was a US based radical preacher, propagandist and senior recruiter for Al-Qaeda. Prior to his death in 2011, Al-Awlaki developed a significant internet presence and amassed a following and influence amongst adherents to radical Islam. In a police interview on 8 February 2017, the respondent agreed that Al-Awlaki was a well-known terrorist leader and stated that she listened to him because she liked his lectures and stories of the prophet.
The binder book also contained the handwritten words “In the hearts of green bird” and “umm … Jannah”. Green birds are used to symbolise the souls of martyrs and “green bird” is a term commonly used to refer to fighters killed during battle or during martyrdom operations. The term “Jannah” means paradise or garden, considered by some to be the final eternal abode of the righteous and true believers of Islam.
Police also located at the respondent’s residence a document on which the words “Syria”, “Iraq” and “I love you” were written.
Recordings
From September 2016, the AFP obtained audio recordings of the respondent by use of listening devices lawfully installed at her home.
On 24 September 2016, the respondent was recorded speaking with another person. Only the respondent’s side of the conversation was recorded. It proceeds as follows:
(Inaudible), they left back screenshot, videos, which shows they have accessed (inaudible), I was asked do you have telegram (inaudible), you know when they knocked the front door, I have deleted the three, telegram, snap chat, messenger, God loves me, (laughter), Praise is to be to God, when we heard the knock, mum was sleeping and I was having breakfast (inaudible).
When woken up (inaudible) my phone was open, I deleted quickly the three, I was told to give them all my email and all the apps I used
Later on 24 September 2016, the respondent was recorded speaking with another person. Only the respondent’s side of the conversation was recorded. It proceeds:
I told you, she was sending a reminder and she was saying Oh (inaudible), she was saying a lot for sure (inaudible).
Sister, you know, I don’t know for sure, you know Umul Ubaida (inaudible), is just like what is it called? I don't know how to say that. I was telling her, no, no, no, I was telling her, how about if you have patience? The other thing, you know what they did now, I tell you, it was like. We did not talk to each other for four days because she was angry. I told her how about you get patience and don’t do it?
And she got very angry (inaudible), Friday, I think Thursday, she messaged me and I asked her to please forgive me.
…
Yes, she said I discouraged her and all that.
Exactly, I in the first place I did but in the end I was like kind of okay, I was not sure, how about if we have patience? How about if we wait maybe Oct or December (inaudible).
And she said, Oh my God, instead of supporting her, then she did not talk to me for four days straight up.
I said please; please, sorry, sorry, (inaudible) she forgave me.
Yes, we said bye to each other the day before.
So I deleted the account (inaudible).
Yes, Telegram…
Between 23 September 2016 and 21 May 2017 the respondent was recorded listening to 21 different nasheeds on around 109 occasions. The recordings included some nasheeds playing in the respondent’s bedroom while she sang the lyrics in Arabic. The nasheeds included the following lyrics, by way of example (as translated into English):
But I am still following your way, the way of Jihad
And I will never give up
I still continue my Jihad, raising my sword and fully prepared
I still continue my Jihad, raising my sword and fully prepared
I still continue I still continue I still continue
I still continue the Jihad wishing an honourable stab lifting my status
Oh my lord accept my death while fighting
and spread my blood on the path of Jihad
Oh my lord accept my death while fighting
and spread my blood on the path of Jihad
…
I always wish from my heart for eternal paradise
The bounty at this paradise, there Is no way I can describe it
My death will give a life to the youth of the religion after me, the youth of the religion after me
On 29 September 2016, the recording device recorded a conversation between the respondent and her brother, which included the following:
Respondent: Do you know KIK?
Respondent’s brother: Yes of course, I use it.
Respondent: Do you think, they can go and get the history?
Respondent’s brother: Were you conversing with anyone?
Respondent: shut up, do you think they can go ...
Respondent’s brother: It is easy, history, were you chatting with someone? You are dead person, what were we doing when you were doing all these?
Respondent: History, can they get the history?
Respondent’s brother: (inaudible) if you were in KIK history.
Respondent: But I deleted their messages.
Respondent’s brother: when long time?
Respondent: I deleted the messages.
On 2 October 2016, a recording from the respondent’s house captured this recording of a male voice (as translated from the Arabic to English)
We give our allegiance Sheik Abu Bakhar al Baghdadi to listen and to obey in good time and bad time, prosperous time, in time of hardship we apply altruism for him and we will not to try to take the authority from the leaders, unless we see a clear disbelieving from them, and we got a clear evidence from god. We give our allegiance to migration and jihad. Takbir (Allah Akbar), Takbir (Allah Akbar), Takbir (Allah Akbar). The Islamic State is lasting, lasting, lasting.
The male voice that was recorded speaking these words came from a video which police have been able to identify. The recording captured two other voices repeating some of the words quoted above. One is that of a child, who can be seen in the video.
In a police interview on 8 February 2017, the respondent told police that she knew Al-Baghdadi to be a leader of Islamic State.
On 2 October 2016, the respondent was recorded listening to, and at times reciting, nasheeds which concerned fighting, death (including martyrdom) and the Islamic State.
On 12 November 2016, a recording from the respondent’s house captured a sermon or speech by a male in which he gave allegiance to “Al-Baghdadi” and stated, in reference to “infidels”, “we come to you and slaughter”. On the same day, the device recorded the respondent’s side of a conversation with another person during which she said:
You know what I did last night? I did something bad, do you know? Did I told you what they did to my Telegram?
When the guys came to check the house, they unlock certain settings in my Telegram which will tell people in my contact their telephones numbers and their locations. So I called a lady in Sweden and saw her ID, asked her why her was showing and she said sister, you were meant not to see it. I told her to block it. So I deleted the app, I then showed interest last night, downloaded the app and wanted to check, it was showing the same features so I deleted it. Yes, I created another account, thank God, If I had used the same account I would have been into trouble.
On 27 November 2016, the device recorded the respondent’s side of a conversation with another person in which she said:
The men came while I was having breakfast, preparing myself to school, eating food. They knock the door and said they have a warrant to search to the whole house.
…
Then they asked me do you have Telegram- No, do you have (inaudible), I deleted them instantly.
…
I have deleted everything, few are there, pictures, my same photos, audios and all my videos, yes, I sent you many and deleted them all- Telegram.
Later on 27 November 2016, the device recorded the respondent’s side of a conversation with another person, in which she said:
… yeah, when going to bed at night, delete everything, for sure, I deleted all (inaudible), you can go to the settings to block and unblock (inaudible), change password, delete it, never went back again there.
Yes (inaudible), just deleted everything, I usually downloads at night (inaudible).
On 8 February 2017, the respondent voluntarily attended Adelaide Airport where she met with investigators from the JCTT and voluntarily participated in an electronically recorded interview. During that interview, the police put to the respondent that on 14 July 2016, she had attempted to enter Raqqa in Syria or Mosul in Iraq, being territory that was then held by Islamic State, and that she may be a member of Islamic State.
After the interview, the respondent was recorded on a listening device in a conversation with her mother and brothers in which she discussed the police investigation and whether she should retain a lawyer. The respondent said:
Lawyer needs to be told the truth, these men already have the truth of the matter, what do I do?
…
What will a lawyer do for me! Say okay, I get a lawyer, he will ask me to tell him my case, tell him everything, is it true what these guys are saying, if it’s false, I need to tell him something, what do I tell him? What these guys are saying is true’.
…
Praise is to be to God, nothing else was shown only the girls.
…
When they searched my phone, they took those things like pictures, videos, many videos, ISIS videos slaughtering white.
…
Just leave it.
…
I didn't cry for those affairs (inaudible) Mum why you are shouting at me, just leave it, don't discuss with me about these affairs when I am at home, mum.
…
Even a small book I wrote the numbers of the three girls and another number when I was saving on my phone, you got it here with you.
…
These men are working like the same.
…
Okay, they will ask me the case, then.
There are two cases they are alleging, first of all whether I was going to join ISIS
.…
I can say that, secondly, I was part of ISIS, being a member.
…
Mum, they are crazy people, because of being a friend with the girls, wasn’t the girls who did that?
…
Was I not a friend with the girls.
…
Mum, of course the girls wrote a letter before doing this, saying they had allegiances to the Khalifat, then it was released in the news by ISIS to show what the girls did, that is what these men are alleging.
…
But, we were friends, I got their missed calls, some used to call me, we were in a group, telegram, I got saved their numbers everywhere.
…
Telegram is like Whatsup in a group.
…
Mum, I don’t know, they said they got 10 millions, telegram they uploaded many things like slaughtering, videos.
…
Those things were in a channel of the telegram, how do I know that? Why have accessed those channels?
…
Those things can only be saved by the phone once it is watched, the phone saved all those things.
…
Then they can say I was a friend with them.
…
We did not know each other in Kenya.
…
Okay, learned each other online, how did you learn each other online?
…
What was on their face book then, what if they search their face book?
…
How did you become friends? What made you become friends? I don’t know.
…
In the group, we were in had the flag of ISIS, was on the face book page. In the group we were in was a flag, that means if the group we were in had an ISIS flag and many things, what do we do? Let them do whatever they want.
…
You can't tell the truth, he is not going to cheat/lie about the law, if you want to tell the truth what is the need of getting a lawyer, a lawyer you have .... a lie, anyway, it is up to them.
On 18 February 2017 the respondent communicated by text with another person “abllafayy” concerning her situation in Adelaide. The respondent wrote “Qadarallah it was my destiny for me to be here sis … there [a]re not a lot of muwahiden just me”. “Muwahid” is a term that has been used by persons purporting to speak for Islamic State to refer to their followers.
Criminal proceedings
On 23 May 23 2017, the respondent was charged with an offence under s 102.3 of the Code. She was convicted by the unanimous verdict of a jury and sentenced to a term of imprisonment of three years with a non-parole period of two years and three months. The sentence commenced on 23 May 2017, the date that the respondent was first taken into custody. The respondent was refused parole on 8 August 2019.
On 31 October 2019, the South Australian Court of Criminal Appeal (CCA) (Kourakis CJ and Parker J, Kelly J dissenting) upheld an appeal by the respondent against her conviction and sentence, set the conviction aside and entered an order of acquittal: Abdirahman-Khalif v The Queen [2019] SASCFC 133. On the same date, the respondent was released from prison. I have not drawn any inferences of fact from the circumstances of the respondent’s charge, conviction or acquittal.
The Commonwealth Director of Public Prosecutions (DPP) has been granted leave to appeal to the High Court of Australia from the whole of the judgment and orders of the CCA. On the appeal, the DPP seeks orders that the appeal be allowed, that the orders of the CCA be set aside, and in their place an order be made that the respondent’s appeal against her conviction be dismissed.
The respondent has filed a notice of contention in the appeal. By that notice, the respondent contends that the decision of the CCA should be affirmed on the grounds that the learned trial Judge erred in his directions to the jury.
It is common ground that a possible outcome of the appeal to the High Court is the remittal of the criminal charges for retrial, so providing a reasonable basis for the respondent’s decision not to give evidence in this proceeding
The period of the respondent’s imprisonment
The respondent was incarcerated at the Adelaide Women’s Prison from 23 May 2017 to 31 October 2019. During that time, the prison did not offer any de-radicalisation courses to its prisoners, although the respondent did undertake a number of life skills courses. She was a well behaved prisoner.
On 25 April 2019, the respondent wrote a letter in support of an application for parole. As summarised in the respondent’s written submissions, the letter stated that:
•she did not have a history of criminal wrongdoing and this was the first time she had been to jail.
•she would not breach any parole conditions imposed.
•she had a strong support network outside.
•she had had many visits from members of her community whilst she had been in jail and they were ready to help her integrate back into society on her release.
•she had demonstrated consistently good behaviour whilst in custody.
•whilst in custody she had regularly seen a psychologist and counsellor, Dr Nadia Ibrahim. Her work with the Respondent had related to spirituality, the struggles young Muslim women face and how she can integrate into Australian society as a Muslim woman.
•whilst in custody she had seen a Department of Correctional Services psychologist, Kimberley Chapple fortnightly since 4 February 2019. She had helped the Respondent understand and learn about cognitive behavioural therapy and techniques to resolve conflicts and stress.
•Dr Ibrahim and Ms Chapple would also be doing a Safety Plan with her.
By letter dated 24 June 2019, the Commonwealth Parole Office invited the respondent to provide information about her current ideological beliefs. The letter contained an acknowledgement that the respondent had been working with Dr Nadia Ibrahim to reconcile her religious identity as a Muslim woman and her identity as an Australian citizen of Somali descent and that there had been positive reports about the respondent’s engagement with Dr Ibrahim. The respondent’s reply dated 12 July 2019 (as summarised in written submissions) was that:
•she did not hold or embrace extremist ideology that calls for harm or violence against any human being.
•the core values of the religion she practiced were to be kind, respectful to others and to respect all differences, backgrounds, cultures and religious beliefs.
•she was extremely remorseful if her actions caused fear and anxiety to the Australian community.
•she was willing to participate in any programme the CPO required.
•Dr Nadia Ibrahim had been working with her since November 2017 and they
•had had about 24 sessions together [she describes the matters they worked on in detail in the letter].
•Dr Ibrahim was linking her with a youth programme called ‘Applied Islam’ by Professor Muhamad Abdulla after her release from prison.
•she had also had 14 sessions with a Department of Correctional Services psychologist, Kimberley Chappel. Ms Chappel had connected her with two services to use when she was released from prison, namely the Survivors of Torture and Trauma Assistance and Rehabilitation Service (STTARS) and a Department of Human Services Youth Inclusion Intervention programme.
•she had been accepted into the Department of Human Services Youth Inclusion Intervention programme, which was a de-radicalisation programme and she planned to work with them after her release.
•she was committed to using her second chance on release very wisely. Her plans for the future included giving back to the community and establishing good, healthy relationships with her family and community.
The respondent’s statements about her then-current and past beliefs were expressed as follows:
My current beliefs are that I do not hold or embrace extremist ideology that calls for harm or violence against any human being. I strongly oppose ISIS’s ideology and I do not ever intend to associate with people who have their extremist views. I am not a danger nor threat to the Australia community; I do not have the mental attitude of causing harm to others and I have never had such attitude.
…
The core values of my religion that I practice are to be kind, respectful to others and to respect all differences, backgrounds, cultures and religious beliefs.
During her incarceration at Adelaide Women’s Prison, the respondent communicated with members of the Clavell family. The family comprises brothers Joel, Joshua, Daniel and Nathan Clavell, as well as Nathan Clavell’s wife, Samia Hussain.
Members of the Clavell family have had involvement with the criminal justice system, as follows:
(1)Joshua Clavell’s criminal record includes a robbery and weapons offence in 2005, dishonesty and property offences in 2007, an assault offence in 2009, driving offences in 2011, violent and property offences in 2018 and violent and property offences in 2019. On 17 June 2019, Joshua Clavell was charged with reckless conduct endangering life, intentional exposure of police officer to risk by driving, aggravated intentional exposure of police officer to risk by driving, damage to emergency service vehicle by reckless driving, assault police officer (indictable).
(2)Daniel Clavell’s criminal record includes attempted robbery in 2005, a resist police offence in 2006, an offence of violence in 2008, a drug offence in 2010, a drug offence in 2011, a drug offence in 2012, firearms, assault, drug and driving offences in 2013, assault and driving offences in 2014 and a property offence in 2019.
(3)Nathan Clavell has convictions from 2018 for a property offence, stalking/intimidation and resisting or hindering police.
(4)On 26 July 2019, Joel Clavell was charged with reckless conduct endangering life, intentional exposure of police officer to risk by driving, aggravated intentional exposure of police officer to risk by driving, damage to emergency services vehicle by reckless driving, eight counts of assault police officer (indictable) and six counts of make threats to kill.
There is no evidence before the Court as to the currency of the charges against Joel and Joshua Clavell.
Between 17 October 2018 and 17 October 2019 there were 13 communications between members of the Clavell family and the respondent, comprising incoming and outgoing letters and incoming money orders for the respondent’s benefit.
On 13 March 2019, Joshua Clavell wrote to the respondent enclosing the receipt for an incoming money order to the Adelaide Women’s Prison for $50 and offering his assistance to her in “any way we can help you we would like to, if ALLAH allows”. In his letter, Joshua Clavell included his postage address and mobile phone number and invited the respondent to contact him if she needed anything. He also said:
We all have to go through test and trials. ALLAH is testing us all, if we have patient [sic] we will succeed. ALLAH is the protector of the believers and will never leave or abandon us. Always put all your trust and leave your affairs with ALLAH. ALLAH has given us the most precious gift, guiding us to Islam. If a person has belief in ALLAH the only God that person has everything, without a person has nothing but a short worldly enjoyment than eternity in Hellfire.
I have written to you so you know that you are not alone. You have Muslims who love you ...
On 19 March 2019, the respondent wrote to Joshua Clavell advising him that she received his letter and money.
On 16 July 2019, Samia Hussain wrote to the respondent stating that she would attempt to put money in the respondent’s account and questioned whether the respondent will be released in August. She invited the respondent to respond to the letter. In the same letter, Samia Hussain said that “everything we go through ... is to test us” as “through these tests & trials ALLAH purifies us & forgives us of our sins”. She quoted from an Islamic historian Ibn Kathir: “... a man will be tested according to his religious commitment & the stronger the degree of that, the stronger the test”.
On 17 July 2019, Daniel Clavell wrote to the respondent thanking her for her letter. He indicated that he had heard she might be applying for parole soon and advised that he has been “sent to Yatala” should she wish to write back to him. Yatala Labour Prison is a high-security men’s prison located in Adelaide. Daniel Clavell went on to state:
… isolation gives us a chance to reflect and think deeply about Islam
A scholar said ‘If you are not being tested you should check yourself in your religion’ Going through trials and hardship is a good sign. God has to be put through fitnah to be purified, so does a Muslim
... there is always people being tested harder than us. May Allah ease there [sic] condition and give them high status .... The Muslim who get pricked by thorn will have sins removed …
The letter included three pages containing quotes from the Qur’an.
On 22 July 2019, the respondent wrote to Samia Hussain. She thanked Samia Hussain and her “brother-in-law for being so kind and generous”. She also said she would “keep them in my duas”, noting “[t]here is no comfort or rest for a Muslim in this dunya, we are here to be tested and purified so we could earn the ultimate reward Paradise and be close to Allah”.
On 23 July 2019, the respondent wrote to Daniel Clavell thanking him for his letter and enclosing a page of “reminders”. These “reminders” were passages from the Qur’an and the writings of Islamic jurists.
On 29 July 2019, Samia Hussain wrote to the respondent. She said in the letter that she had received the respondent’s “card and picture” and referred to “$50 my husband sent”. Samia Hussain advised “3 of his [Nathan Clavell's] brothers are also in prison by the qadr of ALLAH”. She wrote of an incident between Joshua Clavell and Joel Clavell and the police which resulted in them being shot. Samia Hussain also wrote about what she had been reading in the Qur’an. She referred to the punishment that awaits hypocrites, which she asserted would be even worse than that for the “kafir”. Samia Hussain invited the respondent to write back.
On 29 August 2019, Nathan Clavell wrote to the respondent. He stated that he was writing on behalf of his wife, Samia Hussain. The letter was signed by Nathan as “Love from Samia”. This letter included a proposal that the respondent marry Daniel Clavell. Within the letter the respondent was invited twice to contact Samia Hussain upon her release (“then we can talk more”) on a mobile telephone number provided. The letter stated “don’t write back just call”.
In late August 2019, the respondent spoke to two officers of the South Australian Department of Correctional Services. The officers informed the respondent of the Clavell family’s history and associations. It is reasonable to infer that the information provided to the respondent included the convictions and charges referred to earlier in these reasons.
In a police interview on 10 September 2019, Joel Clavell expressed the following views: Shia are not Muslim; Shia will go to “hellfire”; democracy is “man’s oppression”; laws prescribed by government are not compatible with Allah’s law; homosexual marriage is “not a thing” in Islam and that homosexuals will “go to hellfire”; anyone who is not a Muslim will go to hellfire; and jihad means fighting for the sake of Allah.
On 17 October 2019, the resoondent wrot to Daniel Clavell in the following terms:
Bismillahi Rahmani Rahem,
Asalamu Alaykum Wa Rahmatullahi Wa Barakata brother Yusuf, insha Aliah you are well and good state of Eeman.
I am writing to let you know that any letters or money that you or your brothers send will be sent back to you. I’m currently having hard time and I had to block mails. I hope you can forgive me and understand my situation.
I appreciate everything that your brothers have done for me, may Allah bless them and reward them with the best of rewards amen.
I Pray that Allah (s.wit) hastens your release and your brothers amen.
I will end it with the words of Ibn Qayyim (RH); “Expecting and hoping for a time of ease, this hope in itself offers a measure of immediate relief”.
May Allah protect you, keep you strong, content and happy amen.
Asalamu Alaikum Wa Rahmafullahi Wa Barakata
Zainab.
To similar effect, Control 6 prohibits the respondent from accessing, requiring, possessing or storing documents 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),
…
Attempts to do any of those things are also prohibited.
Like Control 5, Control 6 does not apply to material published by specified mainstream information sources. The requirements of s 104.4(1)(d) are satisfied in relation to that Control. The respondent has advanced no legitimate basis upon which she may wish to access or possess information of the kind described, and the exception makes adequate provision for the respondent to access such material for purposes unrelated to the reinforcement of her radical ideological beliefs.
Restriction on sharing information
Control 7 prohibits the respondent from producing or distributing documents or electronic media relating to the same subject matters referred to in Controls 5 and 6. Counsel for the respondent did not suggest that this Control represents a significant incursion on her civil liberties. The respondent’s beliefs are such that there is a real risk that she may in the future participate in the preparation and distribution of materials of the kind described, including by sharing them with other adherents of Islamic State on social media. The requirements of s 104.4(1)(d) are satisfied in relation to this Control.
Possession of items
Control 8 prohibits the respondent from purchasing, renting or driving any vehicle which exceeds a gross vehicle mass of 4.5 tonne.
The respondent does not presently have a driver’s licence. As such, I do not consider this Control to have any present impact upon her legitimate interests.
The applicant submits that vehicles have been used to commit terrorist acts in Australia and elsewhere. The applicant acknowledges that such an act may be committed using a vehicle with a mass of less than 4.5 tonne, but submits that a heavier vehicle has the capacity to cause greater harm. The Control, it is submitted, strikes a balance between any legitimate purpose the respondent may have for operating a motor vehicle (should she obtain a driver’s licence during the currency of the orders) and the need to control her access to items that may be used for the commission of a terrorist act. I accept those submissions, notwithstanding the observations I have made earlier in these reasons about the lack of any current threat of a specific terrorist act being carried out by specific means. The effectiveness of the Control will depend upon the respondent’s compliance with it, but as I have said, the respondent did not suggest that the Control should not be confirmed because there would be non-compliance with it, nor was it suggested that the respondent was just as likely to commit a terrorist act with a vehicle of lesser mass. I am satisfied that the requirements of s 104.4(1)(d) are fulfilled in connection with this Control.
Control 9 prohibits the respondent from using or causing any person to act on her behalf to possess or use the following substances or articles:
(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.
By an agreed amendment, the Control does not apply to quantities of petrol contained in the tank of a vehicle.
Section 104.4(1)(d) of the Code is satisfied in relation to this Control, for equivalent reasons given in relation to Control 8. It is not suggested that the respondent is currently licenced to possess the items in (i) and (ii) nor that she may ordinarily possess them for lawful purposes.
Associations
Control 10 prohibits the respondent from communicating or associating with any person incarcerated in a correctional facility, any person located in Turkey, Iraq or Syria and the members of the Clavell family identified earlier in these reasons. Paragraph 21 of the Controls as presently proposed provides for the respondent to be granted an exception in relation to her dealings with persons situated in Turkey, Iraq or Syria. These restrictions clearly serve the statutory purposes and are appropriately adapted to that end. The classes of persons referred to in the Control are very limited and there is no evidence before me that the respondent’s legitimate interests will be impacted in any significant way by this Control.
Modes of communication
Controls 11 to 19 significantly restrict the respondent’s rights to possess and use communication and telecommunication devices, as well has her uses of internet services, email and communication applications. More specifically, they confine the respondent to the use of:
(1)a single (approved) mobile telephone device, provided that the telephone number and service number are disclosed to the AFP (Control 11);
(2)a single (approved) landline telephone service (not including a satellite phone or public phone, other than in the event of an emergency) (Controls 12, 13, 14);
(3)a single (approved) computer (not being a tablet) (Controls 18 and 19);
(4)a single (approved) internet service provider (Control 16);
(5)a single (approved) email account with a requirement that her password be divulged to the AFP (Control 17); and
(6)a single social media application (Facebook with Facebook Messenger) (Control 15).
Notwithstanding the absence of evidence on the topic, it is reasonable to infer that these Controls significantly impinge upon the freedoms of a person of the respondent’s age. I consider the restriction of the respondent’s use of communication applications to present very real obstacles to her ability to integrate into the community.
The restriction of the respondent to single hardware devices and communication services has the practical effect of assisting the police to monitor her communications. I am satisfied that the restrictions also have the practical effect of limiting the opportunities the respondent may otherwise have to associate with other adherents of her radical ideology. To the extent that the controls operate in conjunction with police methods of investigation, they have the effect of discouraging the respondent from breaching other controls that limit the kind of information she may access or distribute. The controls are sought against a background in which the respondent has demonstrated some degree of manipulation of her communications, by using multiple applications which she has later deleted from her devices in an attempt to avoid surveillance by police. I consider the use of online communications to be a significant feature of the risk posed by the respondent. Of particular significance is the nature and extent of her involvement with the Mombasa group and her foreknowledge of a terrorist attack which she did nothing to report or prevent.
In considering these Controls, I have had regard to the capacity of the AFP to monitor the respondent’s online communications in the ordinary course so as to become aware at the earliest stage of any attempts by the respondent to associate with other extremists or to access information so as to act on her beliefs as a sole actor.
There is unintended repetition in sub-paras 14(a)(xiv) and 14(a)(xxiv), both referring to the Talkatone app. That Control will be varied so as to remove the latter reference and the remaining sub-paragraphs will be renumbered.
To adopt the language of Gleeson CJ in Thomas v Mowbray, I consider the degree of curtailment of the respondent’s civil liberties affected by these Controls to properly reflect the nature and degree of the risk I have identified earlier in these reasons. The same test is satisfied in relation to all of the Controls that are to be confirmed.
Counselling
Control 20 (set out in at [126] above) requires the respondent to participate in good faith in an approved counselling service.
In the absence of evidence as to the underlying causes of the respondent’s adherence to Islamic State ideology, it is difficult to predict the likely effectiveness of any counselling programs the respondent may participate in. In addition, expressed as it is in subjective terms, I have some reservation as to whether a breach of the Control is capable of detection and hence have some reason to doubt its practical utility. On balance, however, I am satisfied that the Control is reasonably necessary and reasonably appropriate and adapted to the relevant statutory purposes, directed as it is to supporting the respondent’s psychological wellbeing and so potentially addressing the cause of her adherence to an extreme ideology. The Control is not to be considered as operating in isolation from the other Controls, nor from the other forms of social support that may be offered to or available to her.
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.
I certify that the preceding two hundred and eleven (211) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 17 July 2020
SCHEDULE
(Annexure of Short Minutes of Order 9 June 2020)
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 AFP Superintendent (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 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 required to report to a police officer every Wednesday, between 7:00 am and 7:00 pm (the reporting period), at Port Adelaide Police Station, 244 St Vincent Street Port Adelaide SA.
3. CONTROL 3
(a) You are prohibited from being at any of the following areas:
(i)within the exclusion zone shaded in yellow set out in Annexures 1 and 2 at Adelaide Airport; and
(ii)within the exclusion zone shaded in yellow set out in Annexures 3 and 4 at Port Adelaide; and
(iii)within 1 km of any Australian airport (beside Adelaide Airport) which has an international point of departure, or from which a person can board or charter a flight for an international destination;
(iv)within 1 km of any Australian port (beside Port Adelaide) which has an international point of departure, or from which a person can board or charter a marine vessel for an international destination;
(v)inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there;
(vi)at the residence of any person with whom, by reason of Control 10, you are prohibited from communicating or associating;
(vii)any place in Australia outside the state of South Australia.
4. CONTROL 4
(a)You are prohibited from leaving Australia for any period of time while this Confirmed Control Order is in force.
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, 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 proceeding McCartney v Abdirahman-Khalif (SAD 245 of 2019), including any appeal from that proceeding.
6. CONTROL 6
(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 proceeding McCartney v Abdirahman-Khalif (SAD 245 of 2019), including any appeal from that proceeding.
7. CONTROL 7
(a)You are prohibited from the following specified activities (including in respect of your work 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;
(vii)suicide attacks;
(viii)bombings;
(ix)terrorist attacks;
(x)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).
8. CONTROL 8
(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.
9. CONTROL 9
(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 9(iii) does not apply to petrol in the petrol tank of a vehicle.
10. CONTROL 10
(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);
5 Joshua John CLAVELL (Date of Birth: 25/01/1989); and
11. CONTROL 11
(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 11(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.
12. CONTROL 12
(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.
13. CONTROL 13
(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.
14. CONTROL 14
(a)You are prohibited from accessing or using, or causing any person to access or use on your behalf, any satellite telephone service.
15. CONTROL 15
(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
(viii) Instagram
(ix) Snapchat
(x) KIK
(xi) iCall
(xii) WeTalk
(xiii) Lync2013
(xiv) Nimbuzz Messenger
(xv) Whistle Phone
(xvi) Talkatone
(xvii) Discord
(xviii) Google Duo
(xix) MagicApp
(xx) Signal Private Messenger
(xxi) Zoiper IAX SIP VOIP Softphone
(xxii) Beejive
(xxiii) Fring
(xxiv) JaJah
(xxv) Line2
(xxvi) Talkatone
(xxvii) Truphone
(xxviii) Twitter
(xxix) Yahoo
(xxx) ICQ
(xxxi) Google Talk
(xxxii) MSN Messenger
(xxxiii) AIM
(xxxiv) Yahoo Messenger
(xxxv) Packet8
(xxxvi) Google Hangouts.
(b)In addition to the platforms listed in Control 15(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 15(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 15(b) and 15(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.
16. CONTROL 16
(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
2nominates 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.
17. CONTROL 17
(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.
18. CONTROL 18
(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.
19. CONTROL 19
(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.
20. CONTROL 20
(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.
21. EXEMPTIONS
(a)You may request the AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Controls 1(a), 2(a), 3(a)(vii), and 10(a)(ii).
(b) To request an exemption, you must:
(i) submit a written request to the AFP Superintendent which:
1identifies the Control in respect of which you seek an exemption;
2explains the extent to which you seek to be exempted from the Control; and
3explains 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.
22. INTERPRETATION
(a) In this Confirmed Control Order:
(i) Material time and date means:
1in 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);
2in relation to a request for an exemption to the requirement in Control 2(a) ⎯ before the conclusion of the reporting period that is the subject of the request (and, if more than one reporting period is the subject of the request, the first of those reporting periods);
3in relation to a request for an exemption to the requirement in Control 3(a)(vii) ⎯ the time and date at which you wish to depart South Australia; and
4in relation to a request for an exemption to the requirement in Control 10(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).
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