McCartney v Abdirahman-Khalif (No 2)

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

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

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