FEDERAL COURT OF AUSTRALIA
McCartney v EB (No 2) [2019] FCA 184
File number: NSD 2324 of 2018 Judge: WIGNEY J Date of judgment: 22 February 2019 Catchwords: CRIMINAL LAW – control orders – application for confirmation of control order pursuant to s 104.14 of the Criminal Code Act 1995 (Cth) – where AFP met preconditions for confirmation of control order – where control order appropriate in circumstances – whether the obligations, prohibitions and restrictions contained in the control orders were on the balance of probabilities reasonably necessary, reasonably appropriate and adapted for their purpose – control order confirmed without variation Legislation: Criminal Code Act 1995 (Cth) ss 104.2, 104.3, 104.4, 104.12, 104.12A, 104.14, 104.15 Cases cited: McCartney v EB [2019] FCA 183 Date of hearing: 8 February 2019 Registry: New South Wales Division: General Division National Practice Area: Federal Crime and Related Proceedings Category: Catchwords Number of paragraphs: 26 Counsel for the Applicant: Mr P Melican Solicitor for the Applicant: Australian Government Solicitor Solicitor for the Respondent: Mr M Davis of Mark Davis Legal ORDERS
NSD 2324 of 2018 BETWEEN: IAN MCCARTNEY
ApplicantAND: EB
Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
22 FEBRUARY 2019
THE COURT ORDERS THAT:
Confirmed control order
1.Pursuant to s 104.14(7)(c) of the Criminal Code Act 1995 (Cth), the Court confirms (without variation) the interim control order made in relation to the respondent on 30 January 2019. The terms of the confirmed control order are set out in the Annexure to these orders.
Non-publication orders
2.There is to be no publication of the form of these orders that includes any information that might identify the Respondent, including his name, address, date of birth and the identity of his parents’ neighbours.
3.Order 2:
(a)is made on the ground set out in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth); and
(b)operates until further order.
Access to documents
4.Order 27 made on 20 December 2018 does not apply to the following documents:
(a)the redacted version of the affidavit of Ian McCartney filed 4 February 2019;
(b)the redacted version of the affidavit of Michael Vita filed 4 February 2019;
(c)the redacted version of the affidavit of Crosbi Knight filed 4 February 2019;
(d)the redacted version of the affidavit of Rodger Shanahan filed 4 February 2019; and
(e)the redacted version of the Originating Application filed 7 January 2019.
5.For the purposes of r 2.32(3)(a) of the Federal Court Rules 2011 (Cth), and until further order, the Applicant’s written submissions dated 18 January 2019 are confidential and shall not be accessible by a non-party.
6.Order 5 does not apply to the redacted version of the Applicant’s submissions filed 4 February 2019.
THE COURT NOTES THAT:
The Court notes that order 5 of the orders made on 20 December 2018 and orders 6 and 7 of the orders made on 30 January 2019 are no longer in force because the event set out in order 7(b) of the orders made on 20 December 2018 has occurred.
Endorsement…
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- AGLC
- McCartney v EB (No 2) [2019] FCA 184
- Case
- [2019] FCA 184
- Decision Date
CaseChat Overview and Summary
The orders of the Court included confirming the interim control order made against the respondent and imposing non-publication orders. The Court also made orders limiting access to certain documents and requiring certain documents to be kept confidential. The control order requires the respondent to remain at a nominated address between certain hours, prohibits them from travelling outside Australia or leaving New South Wales without permission, and restricts their ability to access or possess various items and technology. The control order is in force until 30 January 2020.
Orders
Orders of the court
Confirmed control order
1. Pursuant to s 104.14(7)(c) of the Criminal Code Act 1995 (Cth), the Court confirms (without variation) the interim control order made in relation to the respondent on 30 January 2019. The terms of the confirmed control order are set out in the Annexure to these orders.
Non-publication orders
2. There is to be no publication of the form of these orders that includes any information that might identify the Respondent, including his name, address, date of birth and the identity of his parents’ neighbours.
3. Order 2:
(a) is made on the ground set out in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth); and
(b) operates until further order.
Access to documents
4. Order 27 made on 20 December 2018 does not apply to the following documents:
(a) the redacted version of the affidavit of Ian McCartney filed 4 February 2019;
(b) the redacted version of the affidavit of Michael Vita filed 4 February 2019;
(c) the redacted version of the affidavit of Crosbi Knight filed 4 February 2019;
(d) the redacted version of the affidavit of Rodger Shanahan filed 4 February 2019; and
(e) the redacted version of the Originating Application filed 7 January 2019.
5. For the purposes of r 2.32(3)(a) of the Federal Court Rules 2011 (Cth), and until further order, the Applicant’s written submissions dated 18 January 2019 are confidential and shall not be accessible by a non-party.
6. Order 5 does not apply to the redacted version of the Applicant’s submissions filed 4 February 2019.
THE COURT NOTES THAT:
The Court notes that order 5 of the orders made on 20 December 2018 and orders 6 and 7 of the orders made on 30 January 2019 are no longer in force because the event set out in order 7(b) of the orders made on 20 December 2018 has occurred.
Endorsement pursuant to Rule 41.06
To: [redacted]
You will be liable to imprisonment, sequestration of property or punishment for contempt if:
(a) for an order that requires you to do an act or thing - you neglect or refuse to do the act or thing within the time specified in the order; or
(b) for an order that requires you not to do an act or thing - you disobey the order.
SCHEDULE
1. The Court is satisfied on the balance of probabilities that:
1.1. The Respondent has been convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Criminal Code Act 1995 (Cth)); and
1.2. The Respondent has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country (s 104.4(1)(c)(vii) of the Criminal Code Act 1995 (Cth)).
2. 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 control order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
2.1. Preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Criminal Code Act 1995 (Cth)); and
2.2. Preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (s 104.4(1)(d)(iii) of the Criminal Code Act 1995 (Cth)).
3. This confirmed control order relates to the Respondent, [redacted].
4. The obligations, prohibitions and restrictions to be imposed on the Respondent by this confirmed control order are those set out in the Annexure to this Schedule.
5. This confirmed control order is to be in force until and including 30 January 2020.
6. The Respondent’s lawyer may attend the AFP Sydney office at 110 Goulburn Street, Sydney NSW between 9:00 am and 4:00 pm, Monday to Friday in order to obtain a copy of this confirmed control order.
ANNEXURE
Control 1
1. You are required to remain at the specified premises:
(i) nominated by you within 24 hours from the time that this Control Order comes into force; and
(ii) approved in writing by the JCTT Coordinator;
between the hours of 10:00pm and 6:00am each day from the day on which the Control Order comes into force until the day that the Control Orders ceases to be in force, unless:
(iii) you are incarcerated in a correctional facility or otherwise in the custody of law enforcement authorities; or
(iv) you contact the JCTT Coordinator in writing:
a. requesting an exemption to the requirements of Control 1 and
b. the JCTT Coordinator approves the exemption in writing.
Control 2
2. You are required to report to a member of the NSW Police Force every Monday, Wednesday and Saturday, between 6:30am and 9:30pm, at Merrylands Police Station, 15-17 Memorial Avenue, Merrylands NSW 2160, unless:
(i) you contact the JCTT Coordinator in writing requesting an exemption to this requirement; and
(ii) the JCTT Coordinator approves the exemption in writing.
Control 3
3. You are prohibited from being at any of the following areas without the prior written approval of the JCTT Coordinator:
(i) any Australian airport which has an international point of departure, or from which a person can board or charter a flight for an international destination; and
(ii) any Australian port which has an international point of departure, or from which a person can board or charter a marine vessel for an international destination; and
(iii) inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there;
(iv) at the residence of any of the persons named in Control 7(iii).
(v) any place in Australia outside the state of New South Wales unless:
a. you contact the JCTT Coordinator in writing requesting approval to travel in Australia, outside of NSW, for a specific period of time; and
b. the JCTT Coordinator consents to the proposed travel in writing.
Control 4
4. You are prohibited from leaving Australia for any period of time while the Control Order is in force.
Control 5
5. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely:
(i) accessing, acquiring, possessing, producing, storing or distributing documents or electronic media (including documents in electronic form), or attempting to access, acquire, possess, produce, store or distribute documents or electronic media (including documents in electronic form), which relate to any of the following:
a. explosives, explosive devices, initiation systems or firing devices;
b. firearms, ammunition or knives;
c. anti-surveillance or counter surveillance.
(ii) accessing, acquiring, possessing, producing, storing or distributing documents or electronic media (including documentation in electronic form), or attempting to access, acquire, possess, produce, store or distribute documents or electronic media (including documents in electronic form), depicting or describing any:
a. execution;
b. beheading;
c. suicide attack;
d. bombing;
e. terrorist attack;
f. propaganda and promotional material for a terrorist organisation; or
g. activities of, or associated with, the Islamic State, being the organisation listed pursuant to the Criminal Code (Terrorist Organisation – Islamic State) Regulation 2014 (Cth).
unless that material is broadcast on Australian free to air television, Australian pay television or in a commercial movie cinema and has been given a classification by the Australian Office of Film and Literature Classification.
Control 6
6. You are prohibited from possessing or using any of the following specified articles or substances, or causing any person to act on your behalf to possess or use any of these specified articles or substances, namely:
(i) firearm or ammunition; and
(ii) any quantity of any chemical which is not consistent with reasonable domestic use.
If work-related use of chemicals would exceed reasonable domestic quantities:
(iii) you may seek approval from the JCTT Coordinator in writing for an exemption to the prohibition in Control 6;
(iv) you are prohibited from possessing or using the chemicals in question unless and until the JCTT Coordinator approves the exemption in writing; and
(v) the JCTT Coordinator may approve the exemption subject to conditions.
Control 7
7. You are prohibited from communicating or voluntarily associating with:
(i) any person incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility.
(ii) any person located in Turkey, Iraq or Syria.
(iii) any of the following specified individuals:
a. Abdulla AZARI (DOB 31 December 1994);
b. Mehmet BIBER (DOB 15 August 1992).
c. Kamal JALAL (DOB 18 February 1994);
d. Omar JAWABREH (DOB 29 June 1993);
e. Mahmoud SUMREIN (DOB 11 June 1990); and
f. Cem TEKIRDAG (DOB 27 November 1991);
g. Mohammad Junaid THORNE (DOB 10 June 1989);
h. Seeyar SIDDIQI (DOB 11 April 1996);
i. Amin ELMIR (DOB 2 October 1989);
j. Oliver BRIDGEMAN (DOB 20 February 1997);
k. Miassar HAMDAN (DOB 21 June 2000);
l. Manar HOUSSEIN (DOB 15 October 1999),
unless you contact the JCTT Coordinator in writing:
a. requesting an exemption to the prohibition; and
b. the JCTT Coordinator approves the exemption in writing.
(iv) Control 7[redacted] does not prohibit you from residing in premises that neighbour premises in which [redacted] resides.
Control 8
8. You are prohibited from accessing or using any of the following specified forms of telecommunications technology or other technology, or to cause any person to access or use such telecommunications technology or other technology on your behalf:
(i) any mobile telephone service (including any telephone service card, subscriber identification module card (SIM card) or account) other than a service approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:
a. you nominate each mobile telephone service; and
b. you provide the JCTT Coordinator with sufficient detail to identify the mobile telephone service you will be accessing or using.
(ii) any fixed or landline telephone service other than one that has been approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:
a. you nominate each fixed or landline telephone service; and
b. you provide the JCTT Coordinator with sufficient detail to identify the fixed or landline telephone service that you will be accessing or using.
(iii) any public telephone except in the case of an emergency, provided that you contact the JCTT Coordinator as soon as possible after accessing or using such a public telephone and:
a. provide sufficient detail to the JCTT Coordinator to identify the public telephone that you accessed or used; and
b. you explain the nature of the emergency which required you to access or use that public telephone.
(iv) any satellite telephone service; and
(v) any Voice Over Internet Protocol (VOIP) service, including any software, mobile application or hardware that will facilitate a VOIP service (for example, but not limited to, 'FaceTime', 'WhatsApp', 'Viber', 'Telegram' and 'Skype'), other than one that has been approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:
a. you nominate each VOIP service, including any software or hardware that will facilitate a VOIP service; and
b. you provide the JCTT Coordinator with sufficient detail to identify the service you will be accessing or using.
(vi) any internet based messaging service, including any software, mobile application or hardware that will facilitate the internet based messaging service (for example, but not limited to, 'WhatsApp', 'Viber' and 'Telegram') other than one that has been approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:
a. you nominate each internet based messaging service, including any software or hardware that will facilitate the service; and
b. you provide the JCTT Coordinator with sufficient detail to identify the service you will be accessing or using.
(vii) any internet service provider account other than one approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:
a. you nominate each internet service provider account;
b. that internet service provider account is operated and hosted within Australia; and
c. you provide the JCTT Coordinator with sufficient detail to identify the account you will be accessing or using.
(viii) any electronic mail (email) account other than one approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:
a. you nominate each email account;
b. the email account is operated and hosted in Australia; and
c. you provide the JCTT Coordinator with sufficient details to identify the nominated account which you will be accessing or using, and
(ix) any computer or tablet device other than one approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:
a. you nominate each computer and tablet device; and
b. you provide sufficient detail to the JCTT Coordinator to identify the nominated computer and tablet device which you will be accessing or using.
Control 9
9. You are required to consider in good faith participating in counselling or education relating to your spiritual, emotional and physical wellbeing, with a suitably qualified professional counsellor or publicly recognised religious leader, for at least 60 minutes every week. If you agree to participate in such counselling or education:
(i) you may nominate the suitably qualified professional counsellor or religious leader with whom you will undertake the counselling or education;
(ii) if you do not nominate a suitably qualified professional counsellor or religious leader, or if the JCTT Coordinator does not consider the person you have nominated is suitably qualified or appropriate to provide the counselling or education, the JCTT Coordinator will nominate such a person for your consideration; and
(iii) you may change your counsellor or religious leader at any time to another person.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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