FEDERAL COURT OF AUSTRALIA
Taylor v Brookman [2024] FCA 200
File number: VID 516 of 2023 Judgment of: BESANKO J Date of judgment: 4 March 2024 Date of publication of reasons: 15 April 2024 Catchwords: CRIMINAL LAW — application for interim control orders pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) (Criminal Code) — where respondent has been convicted in Australia of an offence relating to terrorism, a terrorist organisation or a terrorist act — where respondent does not oppose the controls — whether proposed orders reasonably necessary — whether proposed orders reasonably appropriate and adapted — where interim control orders made
CRIMINAL LAW — where election made to confirm control order — where conditions under ss 104.4(1)(c) and (d) of the Criminal Code satisfied — interim control orders confirmed.
Legislation: Crimes Act 1914 (Cth) Pts 5.3, 5.5
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) ss 5, 6, 7
Criminal Code 1995 (Cth) 101.1, 102.3, 104, 104.1, 104.3, 104.4, 104.12, 104.12A, 104.14, 104.27
Evidence Act 1995 (Cth) s 191
Cases cited: Booth v Brookman [2021] FCA 767
Booth v Brookman (No 2) [2022] FCA 30
Booth v Brookman (No 3) [2022] FCA 42
McCartney v EB [2019] FCA 183; (2019) 263 FCR 170
McCulloch v Maryland (1819) 4 Wheat 316
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Division: General Division Registry: Victoria National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 35 Dates of hearing: 5 October 2023, 4 March 2024 Counsel for the Applicant: Mr A Berger KC with Ms K McInnes Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr P Morrissey SC with Ms G Morgan Solicitor for the Respondent: Stary Norton Halphen ORDERS
VID 516 of 2023 BETWEEN: CAROLINE TAYLOR
Applicant
AND: ADAM MATHEW BROOKMAN
Respondent
ORDER MADE BY:
BESANKO J
DATE OF ORDER:
4 MARCH 2024
THE COURT ORDERS THAT:
1.Pursuant to s 104.14(7)(c) of the Criminal Code Act 1995 (Cth), the interim control order made in relation to the Respondent on 5 October 2023 be confirmed without variation in the terms of the confirmed control order set out in the Annexure to these Orders.
2.This confirmed control order be in force until and including 5 July 2024.
3.The Respondent’s lawyer may attend the AFP Melbourne office at 155 Little Lonsdale Street, Melbourne, Victoria between 9 am to 4 pm, Monday to Friday in order to obtain a copy of these Orders.
4.There is to be no disclosure, by publication or otherwise, of:
4.1the identity of the Witness whose statement is at pages 677 to 719 of the First Affidavit of Caroline Taylor sworn 7 July 2023, including the Witness’s name, gender, image, country of residence and citizenship,
4.2the statement that is at pages 677 to 719 of the First Affidavit of Caroline Taylor sworn 7 July 2023,
4.3paragraphs…
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- AGLC
- Taylor v Brookman [2024] FCA 200
- Case
- [2024] FCA 200
- Decision Date
CaseChat Overview and Summary
The court considered the requirements of s 104.4(1) of the Criminal Code, which necessitates that the proposed obligations, prohibitions, and restrictions must be both reasonably necessary and reasonably appropriate and adapted. This involves a balancing exercise, as outlined in s 104.4(2), which weighs the impact of the control measures against the circumstances of the respondent. The court also referred to the principles established in McCulloch v Maryland (1819), highlighting the necessity for a sufficient connection between the desired end and the means proposed to achieve it.
After evaluating the evidence presented, including a detailed statement of agreed facts and affidavits from Caroline Taylor and Commander Taylor, the court found that the proposed control orders met the criteria set out in the legislation. The court was satisfied on the balance of probabilities that the respondent had been convicted of a terrorism-related offence and that the control orders were reasonably necessary and appropriately adapted for the purposes of protecting the public and preventing the respondent from engaging in activities that support or facilitate terrorism.
As a result, the court confirmed the interim control orders without variation, in line with the terms set out in the confirmed control order. The confirmed control order includes a range of restrictions on the respondent's activities, communications, and possessions, including curfews, restrictions on travel and communication, and limitations on the use of electronic devices and the internet. The order also mandates participation in counselling or education related to the respondent's psychological and physical wellbeing.
The final orders include the confirmation of the interim control order, its duration until 5 July 2024, and provisions for non-disclosure of certain information to protect the identity of witnesses and sensitive details of the proceedings. The court also outlined specific conditions under which exemptions to the control measures could be requested or granted.
Orders
Orders of the court
1. Pursuant to s 104.14(7)(c) of the Criminal Code Act 1995 (Cth), the interim control order made in relation to the Respondent on 5 October 2023 be confirmed without variation in the terms of the confirmed control order set out in the Annexure to these Orders.
2. This confirmed control order be in force until and including 5 July 2024.
3. The Respondent’s lawyer may attend the AFP Melbourne office at 155 Little Lonsdale Street, Melbourne, Victoria between 9 am to 4 pm, Monday to Friday in order to obtain a copy of these Orders.
4. There is to be no disclosure, by publication or otherwise, of:
4.1 the identity of the Witness whose statement is at pages 677 to 719 of the First Affidavit of Caroline Taylor sworn 7 July 2023, including the Witness’s name, gender, image, country of residence and citizenship,
4.2 the statement that is at pages 677 to 719 of the First Affidavit of Caroline Taylor sworn 7 July 2023,
4.3 paragraphs 37.1, 37.2, 39.1, 43.2 – 43.5, 62, 63 (and the identity of the witness as contained in the footnotes therein) of annexure CT-05 to the First Affidavit of Caroline Taylor sworn on 7 July 2023, or
4.4 any other part of the proceeding, including preliminary discussion or legal argument, or information derived from the proceedings, which refer to or may disclose the identity of the Witness.
5. Order 4 is made under s 37AF of the Federal Court of Australia Act 1976 (Cth) (on the grounds set out in s 37AG(1)(b) and (c) of that Act).
6. Order 4 operates for a period of five years.
7. Order 4 does not prevent disclosure of information to and between the following people for the purposes of these proceedings:
7.1 the presiding judge and necessary staff of this Court;
7.2 persons referred to in s 6(1) of the Australian Federal Police Act 1979 (Cth) and legal representatives of the Australian Federal Police instructed in these proceedings;
7.3 the Respondent and his legal representatives;
7.4 Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth));
7.5 officers of the foreign agencies identified in the Confidential Second Affidavit of Caroline Taylor sworn on 7 July 2023.
8. There is to be no disclosure, by publication or otherwise, of the Confidential Second Affidavit of Caroline Taylor sworn on 7 July 2023.
9. Order 8 does not prevent disclosure of information to and between the people identified in orders 7.1 and 7.2 for the purposes of these proceedings.
10. Order 8 is made under s 37AF of the Federal Court of Australia Act 1976 (on the grounds set out in s 37AG(1)(b) and (c) of that Act).
11. Order 8 operates for a period of five years.
12. There is to be no disclosure, by publication or otherwise, of:
12.1 the address of the Respondent referred to in Control 2.1.1 of the confirmed order;
12.2 any future address of the Respondent approved by the AFP pursuant to Control 2.1.2 of the confirmed order; and
12.3 any other part of the proceeding, including preliminary discussion or legal argument, or information derived from the proceedings, which refer to or may disclose these addresses.
13. Order 12 is made under s 37AF of the Federal Court of Australia Act 1976 (Cth) (on the grounds set out in s 37AG(1)(a), (b) and (c) of that Act).
14. Order 12 operates for a period of 5 years.
15. Order 12 does not prevent the disclosure of information to and between the following people for the purposes of these proceedings:
15.1 the presiding judge and necessary staff of this Court;
15.2 persons referred to in s 6(1) of the Australian Federal Police Act 1979 (Cth) and legal representatives of the Australian Federal Police instructed in these proceedings;
15.3 the Respondent and his legal representatives;
15.4 Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)); and
15.5 officers of the foreign agencies identified in the Confidential Second Affidavit of Caroline Taylor sworn on 7 July 2023.
THE COURT NOTES THAT:
16. This confirmed control order relates to the Respondent, Adam Mathew Brookman.
17. It is satisfied on the balance of probabilities that the Respondent has been convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Criminal Code).
18. It is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the Respondent by the order is reasonably necessary, and reasonably appropriate and adapted, for the purposes of:
18.1 protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Criminal Code); and
18.2 preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Criminal Code); and
18.3 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).
ANNEXURE
1.
[Intentionally left blank]
2.
Control 2 (Specified Premises)
2.1. You are required to remain at the specified premises between the hours of 11:00 pm and 5:00 am (the curfew period) each day from the day on which this interim control order comes into force until the day that it ceases to be in force.
The specified premises is:
2.1.1. [REDACTED]; or
2.1.2. an alternative premises that has been pre-approved in writing by an AFP Superintendent.
2.2. You must present and identify yourself at the specified premises during the curfew period upon request by a police officer.
3.
Control 3 (Prohibited places)
3.1. You are prohibited from being at any of the following areas:
3.1.1. inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there;
3.1.2. at the residence of any person with whom, by reason of Control 11, you are prohibited from communicating or voluntarily associating;
3.1.3. any place in Australia outside the state of Victoria, unless:
i. you contact an AFP Superintendent in writing requesting approval to travel in Australia 14 days prior to the intended departure date, outside the state of Victoria, for a specific period of time; and
ii. an AFP Superintendent consents to the proposed travel in writing.
4.
Control 4 (Prohibition on leaving Australia)
4.1. You are prohibited from leaving Australia.
5.
Control 5 (Prohibited groups/financial/appearance and travel activities)
5.1. You are prohibited from carrying out the following activities (including in respect of your work or occupation), namely:
Groups
5.1.1. Forming or joining any group, club or organisation, including any internet based social networking service, without written permission from an AFP Superintendent.
5.1.2. Forming any corporation, partnership, incorporated association, registering any business names, or operating a business without first notifying an AFP Superintendent in writing.
5.1.3. Forming prayer groups out of a Mosque, leading prayers or instructing others on leading prayers.
5.1.4. Attempting to influence any other person in relation to religious or ideological matters including through online or social media.
Financial
5.1.5. Transferring money, other currency or assets, including crypto currency to another person equal to or exceeding the value of $1500 whether by cash, cheque or electronic transfer without first notifying an AFP Superintendent in writing of your intention to do so and, providing a receipt of payment thereafter, unless required to do so for purposes of employment or education.
5.1.6. Making any gift, donation, or financial contribution to any organisation, association, entity or charity howsoever described without first notifying an AFP Superintendent in writing of your intention to do so and, providing a receipt of payment thereafter.
Public Appearances
5.1.7. Presenting at, or appearing as a presenter or speaker at, or appearing on stage at, or providing public endorsement of any other presenter or speaker at, any public gathering that is publicly or privately broadcast via the internet or any telecommunications network, and/or attended by 5 or more people.
5.1.8. Make any public appearances or statement for publication in any form to any person, or cause any statement to be published by any person on your behalf, in relation to any of the following matters:
i. carrying out, authorising or permitting violence;
ii. activities of any terrorist organisation;
iii. the ideology of or any material published, produced or endorsed by any terrorist organisation;
iv. use of weapons, firearms, ammunition or explosives;
v. any of the matters set out in Control 6.1.a;
vi. adherence to any fatwa, decree, ruling or statement of the following persons:
i. Ayman al-Zawahiri;
ii. Osama bin Laden;
iii. Abu Muhammad al Maqdisi;
iv. Abu Bakr Al-Baghdadi;
v. Abu Qatada al-Filistini;
vi. Said Mansour
vii. Abu Ibrahim al-Hahimi al-Qurashi, aka Amir Mohammed Abdul Rahman al-Mawli al-Salbi.
Activities Pertaining to Travel
a. Applying for travel documents for any country.
6.
Control 6 (Prohibition on possessing, storing, producing or distributing documents)
6.1. You are prohibited from carrying out the following activities (including in respect of your work or occupation), namely:
6.1.1. Possessing, storing, recording or copying documents (including documents in electronic form) or electronic media, or attempting to possess or store documents (including documents in electronic form) or electronic media, or directing any person to possess, store, record or copy documents on your behalf, which relate to any of the following:
i. explosives, explosive devices, initiation systems or firing devices;
ii. firearms, ammunition or knives;
iii. anti-surveillance or counter surveillance;
iv. execution;
v. beheading;
vi. suicide attack;
vii. bombing;
viii. terrorist attack;
ix. assassination;
x. torture;
xi. genocide;
xii. violent jihad;
xiii. propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or
xiv. activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).
6.1.2. Collating, editing, producing or distributing documents (including documents in electronic form) or electronic media relating to:
i. explosives, explosive devices, initiation systems or firing devices;
ii. firearms, ammunition or knives;
iii. anti-surveillance or counter surveillance;
iv. execution;
v. beheading;
vi. suicide attack;
vii. bombing;
viii. terrorist attack;
ix. assassination;
x. torture;
xi. genocide;
xii. violent jihad;
xiii. propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or
xiv. activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).
7.
Control 7 (Prohibition on accessing/viewing specific activities)
7.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely, intentionally accessing or viewing documents (including documents in electronic form) or electronic media, or attempting to access or view documents (including documents in electronic form) or electronic media, which relate to any of the following:
7.1.1. explosives, explosive devices, initiation systems or firing devices;
7.1.2. firearms, ammunition or knives;
7.1.3. anti-surveillance or counter surveillance;
7.1.4. execution;
7.1.5. beheading;
7.1.6. suicide attack;
7.1.7. bombing;
7.1.8. terrorist attack;
7.1.9. assassination;
7.1.10. torture;
7.1.11. genocide;
7.1.12. violent jihad;
7.1.13. propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or
7.1.14. 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:
7.1.15. published by a ‘constituent body’ of the Australian Press Council;
7.1.16. published by Al Jazeera, the British Broadcasting Corporation (BBC), CNN, or the Guardian;
7.1.17. broadcast on Australian free to air television;
7.1.18. broadcast on Australian pay television;
7.1.19. shown in a commercial movie cinema; or
7.1.20. broadcast on one of the following streaming services: Netflix; STAN; Amazon Prime; ABC iView; or SBS On Demand.
8.
Control 8 (Vehicle)
8.1. You are prohibited from carrying out the following specified activities namely: renting, purchasing, or driving any vehicle which exceeds a gross vehicle mass of 2.5 tonne, unless required for employment purposes, in which case you must notify the AFP Superintendent within 24 hours of becoming aware you need to drive such a vehicle for employment purposes.
9.
Control 9 (Work, training, volunteering and education)
9.1. You must notify the AFP Superintendent in writing within three days of commencing:
a. any paid employment; or
b. volunteer work or unpaid work; or
c. training or education;
with the exception of current enrolment in C2225 Certificate II in Electrotechnology at RMIT University
9.2. In notifying the AFP Superintendent, you must submit a written notice to the AFP Superintendent which includes information about the proposed work, volunteering, training or education, including:
9.2.1. in the case of paid work, details of the person for whom you will be undertaking the work (eg the employer), including their name and place of business, and the nature of the work that will be undertaken.
9.2.2. in the case of volunteering, details of the person or organisation with whom you will be undertaking the volunteering, including their name and place of operation, and the nature and location of the volunteering that will be undertaken.
9.2.3. in the case of training or education, details of the person or organisation who will be providing the training or education, including their name and place of business, and the nature of the training or education that will be undertaken.
10.
Control 10 (Prohibition on possessing/using specified articles/substances)
10.1. You are prohibited from possessing or using, or permitting any person to act on your behalf to possess or use, any of these specified articles or substances, namely:
10.1.1. ‘firearm’ or ‘cartridge ammunition’ within the meaning of s 3(1) of the Firearms Act 1996 (Vic);
10.1.2. a 'prohibited weapon' within the meaning of s 3(1) of the Control of Weapons Act 1990 (Vic);
10.1.3. any quantity of petrol exceeding 4 litres that is not contained in the petrol tank of a vehicle that you have purchased, rented or driven in compliance with Control 8.1;
10.1.4. any quantity of any chemical which is not consistent with reasonable domestic use or required for employment or education purposes;
10.1.5. an article or device, not being a firearm, capable of discharging by any means:
i. any irritant matter in liquid, powder, gas, chemical form or any dense smoke; or
ii. any substance capable of causing bodily harm;
except for reasonable domestic use or required for employment or education purposes;
10.1.6. a detonator;
10.1.7. a fuse capable of use with an explosive or a detonator;
10.1.8. a knife, in a public place, without reasonable excuse;
10.2. You are prohibited from possessing or using any thing intended to be used to injure or menace a person or damage property, and from instructing another person to use any thing to injure or menace a person or damage property on your behalf.
10.3. You are prohibited from carrying out the following activities (including in respect of your work or occupation), namely:
10.3.1. purchasing any firearms or ammunition, or permitting any person to act on your behalf to purchase any firearms or ammunition;
10.3.2. Permitting storage or use of any firearms or ammunition at your place of residence;
10.3.3. Using any weapon in connection with hunting or related activities. This includes spear fishing but does not include fishing with a net or line.
11.
Control 11 (Non-associates)
11.1. You are prohibited from communicating or associating with, or attempting to communicate or associate with, directly or indirectly through a third party:
11.1.1. any person who, to your knowledge, is incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility;
11.1.2. any person who, to your knowledge, is subject to a continuing detention order or extended supervision order pursuant to Division 105A of the Criminal Code Act 1995 (Cth);
11.1.3. any person who, to your knowledge, is subject to a control order made under Division 104 of the Criminal Code Act 1995 (Cth);
11.1.4. any person who, to your knowledge, has been convicted of, or is currently charged with, an offence against:
i. Part 5.3 of the Criminal Code Act 1995 (Cth);
ii. the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth);
11.1.5. any person who, to your knowledge, is located in Morocco, Jordan, The West Bank, Saudi Arabia, Turkey, Iraq, Syria, Afghanistan, Pakistan, Yemen, Sudan, Somalia, Egypt, Philippines or Indonesia.
11.1.6. any of the following persons:
i. Momena SHOMA
ii. Abdullah CHAARANI
iii. Ahmed MOHAMED
iv. Khaled TEMSSAH
v. Hadashah Sa’adat KHAN
vi. Isa KOCOGLU
vii. Shayden THORNE
viii. Murat KAYA
ix. Robert CERANTONIO
x. Hatim MOUKHAIBER
xi. Aisha ALQATTAN
xii. Taha SEPEHRNIA
xiii. Eldea TEUIRA
xiv. Cody BROOKS
xv. Troy BARNES
xvi. Nazir SHIRYAR
xvii. Matthew MATOVIC
xviii. Michael DARDHA
xix. Bowe MADDIGAN
xx. Peter HOWARTH
xxi. Joseph McDONALD
xxii. Ziad AMOUCHE
xxiii. Christopher HEMMING
xxiv. Mark CONTIN
xxv. Eshan MAJEDI
xxvi. Paul DACRE
xxvii. Antonino GRANATA
xxviii. Kadir KAYA
xxix. Wissam FATTAL
xxx. Ramazan ACAR
xxxi. Ertunc ERIKLIOGLU
xxxii. Samed ERIKLIOGLU
xxxiii. Ari SHERANI
xxxiv. Hanifi HALIS
xxxv. Hassan EL SABSABI
12.
Control 12 (Permitted mobile phone)
12.1. You are prohibited from accessing or using, any mobile telephone device and SIM card other than a single mobile telephone device and SIM card provided to you by an AFP Superintendent or a Police officer acting under an AFP Superintendent’s direction (the permitted mobile phone) for your use.
12.2. Prior to using the permitted mobile phone an AFP Superintendent and/or a Police officer under their direction, will provide you with the following information in writing:
12.2.1. the International Mobile Equipment Identity (IMEI) number for the permitted mobile phone;
12.2.2. the Integrated Circuit Card Identifier for the SIM card you will use with the permitted mobile phone;
12.2.3. the telecommunication service provider which you will use with the permitted mobile phone;
12.2.4. the account credentials to access the permitted mobile phone; and
12.2.5. the phone number to which the permitted mobile phone will be connected.
12.3. You are required to do all of the following:
12.3.1. permit one or more Police officers to inspect, repair, service, replace or access and examine data held within the permitted mobile phone at any reasonable time;
12.3.2. if there is, or you have set, account credentials for the permitted mobile phone, provide the Police officer/s the account credentials and facilitate the inspection, repair, service, replacement and examination of data held within the permitted mobile phone;
12.3.3. ensure that the permitted mobile phone, and any equipment necessary for the operation of the permitted mobile phone, are and remain in good working order;
12.3.4. if you become aware that the permitted mobile phone, or any equipment necessary for the operation of the permitted mobile phone, is not in good working order, notify a Police officer as soon as practicable, but no later than 12 hours after becoming aware; and
12.3.5. if you set account credentials for the permitted mobile phone, or change the account credentials for the permitted mobile phone, you must provide the new account credentials to the AFP Superintendent, or a Police officer under their direction, as soon as practicable, but no later than 12 hours after changing the account credentials.
12.4. You must not:
12.4.1. tamper with, damage or destroy any component of the permitted mobile phone or any equipment necessary for the operation of the permitted mobile phone;
12.4.2. change, remove, modify or disconnect the SIM card, telecommunication service provider or phone number connected to the permitted mobile phone;
12.4.3. use, download or install any encryption, obfuscation or encryption services to prevent inspection of, or examination of data held within, the permitted mobile phone;
12.4.4. delete or alter any applications, emails, text message, electronic message, call history, any data, Internet or application search history, any application chat or communication history stored on or accessible from the permitted mobile phone;
12.4.5. use any platforms, applications, programs, services or software to alter, conceal, automatically delete or otherwise erase any of the following:
a. emails;
b. text messages;
c. electronic messages;
d. call history;
e. data, including but not limited to any chat or communication history, that is stored in or accessible from the permitted mobile phone, or by another person on your behalf (including on any devices or platforms that are not permitted by the conditions of Control 12);
f. Internet or application search history;
12.4.6. attempt to do any of the things referred to in Controls 12.4.12.4.1 to 12.4.12.4.5.
12.4.7. allow or cause any other person (including any employee or person acting on behalf of a telecommunications service provider) to do, or attempt to do any of the things referred to in Controls 12.4.12.4.1 to 12.4.12.4.5.
12.5. You are prohibited from permitting another person to use or access:
12.5.1. the permitted mobile phone, except in the following circumstances:
a. in case of an emergency to contact the Emergency services; and
b. when you are conducting a telephone call in loudspeaker mode or through Bluetooth provided you initiate or answer the telephone call and are a participant in the conversation;
12.5.2. any mobile telephone device on your behalf, except in the case of an emergency to contact the Emergency services.
12.6. If the emergency use exceptions in Control 12.5.1 are enlivened, you are required to notify the AFP Superintendent, and/or a Police officer under their direction, as soon as practicable but no later than 12 hours after another person uses or access the permitted mobile phone or another person uses or accesses any mobile telephone device on your behalf and provide:
12.6.1. sufficient information to identify the person who used or accessed the permitted mobile phone or used or accessed a mobile telephone device on your behalf; and
12.6.2. the date, time and telephone number/s called;
12.6.3. an explanation of the nature of the emergency; and
12.6.4. any other information reasonably requested.
12.7. Control 12.1 does not apply if the use of another mobile telephone device is solely for the purposes of notifying the AFP Superintendent, and/or a Police officer under their direction of a fault or damage to the permitted mobile phone.
13.
Control 13 (Prohibition on using/accessing a fixed landline telephone)
13.1. You are prohibited from accessing or using any fixed or landline telephone or facsimile service other than one service that has been approved in writing by the AFP Superintendent for you to access or use, unless in the event of an emergency or if it is required for purposes of employment.
13.2. To seek approval, you must:
a. submit a written request to the AFP Superintendent nominating the fixed or landline telephone or facsimile service you wish to use; and
b. provide any other information requested by or on behalf of the AFP Superintendent for the purpose of identifying the nominated fixed or landline telephone or facsimile service.
13.3. You are prohibited from permitting another person to use or access any fixed or landline telephone or facsimile service on your behalf, unless in the event of an emergency.
13.4. If you use, or another person on your behalf uses, a fixed or landline telephone or facsimile service that has not been approved in writing by the AFP Superintendent, you are required to notify the AFP Superintendent and provide an explanation for the use of that service within 24 hours.
14.
Control 14 (Prohibition on using a public telephone)
14.1. You are prohibited from accessing or using, or permitting 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 within 24 hours after accessing or using such a public telephone and:
a. provide sufficient detail to the AFP Superintendent to identify the public telephone that you accessed or used, the date, time and phone number called; and
b. you explain the nature of the emergency which required you to access or use, or cause another person to access or use on your behalf, that public telephone.
15.
Control 15 (Permitted computer or tablet device)
15.1. You are prohibited from accessing or using any computer or tablet device (including, but not limited to an XBox, PlayStation, Nintendo etc.) other that the single computer or tablet device provided to you by the AFP (the permitted computer or tablet device) unless you are accessing a computer at your workplace or university solely for the purposes employment or education and do not use it for any other purpose (including browsing the internet for reasons unconnected with your employment or education).
15.2. Prior to you using the permitted computer or tablet device, the AFP Superintendent, or a police officer under their direction, will provide you with the following information in writing:
a. the make and model of the permitted computer or tablet device;
b. the serial number of the permitted computer or tablet device; and
c. the account credentials associated with the permitted computer or tablet device.
15.3. You are required to do all of the following:
a. permit one or more Police officers to inspect, repair, service, replace or access and examine data held within the permitted computer or tablet device at any reasonable time;
b. if there is, or you have changed, account credentials for the permitted computer or tablet device, provide the Police officer/s the account credentials and facilitate the inspection, repair, service, replacement and examination of data held within the permitted computer or tablet device;
c. ensure that the permitted computer or tablet device, and any equipment necessary for the operation of the permitted computer or tablet device, are or remain in good working order;
d. if you change account credentials for the permitted computer or tablet device, you must provide the new account credentials to the AFP Superintendent, or a Police officer under their direction as soon as practicable, but no later than 12 hours after changing the account credentials; and
e. if you become aware that the permitted computer or tablet device, or any equipment necessary for the operation of the permitted computer or tablet device, is not in good working order, notify a Police officer as soon as practicable, but no later than 12 hours after becoming so aware.
15.4. You must not:
a. tamper with, damage or destroy any component of the permitted computer or tablet device or any equipment necessary for the operation of the permitted computer or tablet device;
b. delete or modify any platforms, programs, software or data (including, but not limited to, software programs, emails, and internet history) stored on or accessible from the permitted computer or tablet device, or partition any drive;
c. use, download or install encryption, obfuscation or encryption services to prevent examination of data and where applicable are required to provide any account credentials or access data to facilitate the examination of the permitted computer or tablet device;
d. attempt to do any of the things referred to in Control 15.4.a, Control 15.4.b or Control 15.4.c;
e. allow any other person to do, or attempt to do any of the things referred to in Control 15.4.a, Control 15.4.b or Control 15.4.c.
15.5. You are prohibited from permitting another person to use or access:
a. the permitted computer or tablet device; or
b. any computer or tablet device on your behalf.
15.6. Control 15.1 does not apply to computers or tablet devices comprising machines publicly available for self-service use (self-service machines), including but not limited to a self-service checkout in a supermarket/store, an automated teller machine (ATM), a global positioning system (GPS) device and self-service ordering kiosks in fast food restaurants, provided that your access and use of any such self-service machine is limited to the machine’s intended use and does not involve using it to browse the internet or send electronic messages unrelated to the business to which it relates.
16.
Control 16 (Permitted Platforms)
16.1. You must not use or access, or cause any person to use or access on your behalf, applications or computer programs (collectively, platforms), unless:
a. the platform has been installed to the permitted mobile telephone, or permitted computer or tablet device, at the time it is first provided to you, and you use or access the platform on the permitted mobile telephone, or permitted computer or tablet device, only; or
b. prior to installing, using or accessing a platform, you obtain the permission of the AFP Superintendent to install, use or access the platform on the permitted mobile telephone, or permitted computer or tablet device; or
c. the platform is required and solely used for education or employment purposes.
16.2. To seek approval under Control 16.1.b to install, use or access a platform, you must:
a. submit a written request to the AFP Superintendent which nominates the platform and the permitted mobile telephone or permitted computer or tablet device on which you will install, use or access the platform; and
b. provide any other information required by or on behalf of the AFP Superintendent in relation to the platform.
16.3. Approval to install, use or access a platform under Control 16.1.b may be granted subject to conditions and may be amended or revoked by the AFP Superintendent. Any conditions, amended conditions or revocation must be in writing.
16.4. You must not use or access, or cause any person to use or access on your behalf:
a. any Voice Over Internet Protocol (VOIP) service;
b. any internet telephony or broadband telephony phone service;
c. any internet messaging service;
d. any Virtual Private Network (VPN);
e. any encrypted service, application or function designed to, or which purports to, disguise or conceal any function of any application, including but not limited to incognito or hidden modes;
f. any Internet browser-based game without first obtaining the permission of the AFP Superintendent to use, access or play that game.
16.5. To obtain the permission under Control 16.4.f. you must:
a. submit a written request to the AFP Superintendent which nominates the Internet browser-based game or games you seek permission to use, access, or play; and
b. provide any other information required by or on behalf of the AFP Superintendent in relation to the game or games.
16.6. Controls 16.1 and 16.4 do not apply to the use of, or access to:
a. 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;
b. any platform, VOIP or website for the purpose of participating in any proceeding in an Australian court to which you are a party or witness;
c. any platform approved by the AFP Superintendent under control 16.1.b; and
d. any Internet browser-based game approved by the AFP Superintendent under 16.4.f.
17.
Control 17 (Permitted Internet Service)
17.1. You are prohibited from using or accessing any Internet service other than the Internet service provided to you by the AFP through the permitted mobile phone and/or the permitted computer or tablet device, for you to use and access (the permitted Internet service), with the exception 17.2.
17.2. You may use the RMIT University WiFi on the permitted computer or tablet device or any university computer that is being used for the purpose of education and in accordance with 15.1.
17.3. You must not:
a. connect to, use or access any wireless (WiFi) network or connection, including the WiFi network or connection enabled from the specified premises or any publicly available WiFi network or connection;
b. permit another person to use or access the permitted Internet service;
c. permit another person to use or access any other Internet service on your behalf;
d. use a virtual private network (VPN) service;
e. use the TOR network; and
f. access any Darknet services (denoted by “onion” top level domain suffix).
17.4. Control 17.1 and Control 17.2.a do not prohibit the use and access to:
a. an automated teller machine;
b. a computer or tablet device, connected to an Internet service, owned by a business or government agency which is made available for your to use to facilitate contact tracing, the ordering or sale of food or consumer products or the provision of a service; or
c. a smart television, which is used by you only for the purposes of watching the services identified out in Controls 7.1.16 to 7.1.20. (inclusive).
18.
Control 18 (Permitted email account)
18.1. You are prohibited from accessing or using any electronic mail (email) account other than:
a. email account S4057923@student.rmit.edu.au for the purposes of education;
b. an account that has been approved in writing by an AFP Superintendent, or person authorised by the AFP Superintendent for the purposes of this Control, specifically a Gmail account, for you to access and use (the permitted email account); and
c. a necessary work or education email account that has been approved in writing by an AFP Superintendent for you to access and use.
18.2. To seek a permitted email account:
a. you must submit a written request to the AFP Superintendent; and
b. provide any other information requested by, or on behalf of, the AFP Superintendent;
c. you are exempt from 18.1 a. for the process of creating a permitted email account in accordance with 18.1 b.
18.3. You are required to do all of the following:
a. If there is, or you have set up, account credentials for the permitted email account, provide the AFP Superintendent, and/or Police officer/s under their direction, the account credentials;
b. If you change the account credentials for the permitted email account, you must provide the new account credentials to the AFP Superintendent, or a Police officer under their direction, as soon as practicable, but no later than 12 hours after changing the account credentials.
18.4. You must not:
a. Permit another person to use or access the permitted email account;
b. Cause any other person to use or access any email account of your behalf;
c. Use, download or install any encryption, obfuscation or encryption services to prevent inspection of, or examination of data held within, the permitted email account;
d. Attempt to do any of the things referred to in Control 18.4.a, Control 18.4.b or Control 18.4.c.
19.
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20.
Control 20 (Participation in counselling)
20.1. You are required to consider, in good faith, participating in counselling or education relating to your psychological and physical wellbeing, with a suitably qualified professional, for at least 60 minutes per week.
20.2. If you agree to participate in such counselling or education you must advise the AFP Superintendent in writing that you have commenced the counselling or education and provide the AFP Superintendent the name and qualifications of the professional you have engaged.
21.
Exemption – requested by you
21.1. You may request the AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Control 2.1, 2.2, Control 6.1, Control 7.1, Control 8, Control 11.1.e, and 12.1.
21.2. To request an exemption, you must:
a. submit a written request to the AFP Superintendent which:
i. identifies the Control in respect of which you seek an exemption;
ii. explains the extent to which you seek to be exempted from the Control; and
iii. explains your reason(s) for seeking the exemption; and
b. provide any other information requested by, or on behalf of, the AFP Superintendent for the purposes of determining whether to approve the exemption.
21.3. The AFP Superintendent may grant an exemption subject to conditions specified in writing.
21.4. You must comply with all of the conditions specified in writing by the AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.
21.5. A request for an exemption must be made before the material time and date.
21.6. If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused.
22.
Exemption –initiated/granted without request
22.1. The AFP Superintendent may grant an exemption, initiated by the AFP, to the requirements or prohibitions specified in the Controls with your consent.
22.2. The AFP Superintendent may grant an exemption subject to reasonable conditions specified in writing provided on reasonable notice to you and to which you consent in writing.
22.3. If an exemption is granted and consented, 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.
23.
Interpretation
23.1. In this Interim Control Order:
a. Account credentials means ‘account credentials’ within the meaning of s 3ZZUK of the Crimes Act 1914 (Cth). It means information that a user of an online account, electronic device, or any electronic equipment, requires in order to access or operate the account, electronic device, or electronic equipment, and includes, for example, each of the following:
i. A username;
ii. A password;
iii. A PIN;
iv. Swipe pattern
v. A security question or answer;
vi. A biometric form of identification
b. AFP Member means a ‘member’ or ‘special member’ of the Australian Federal Police, as defined by the Australian Federal Police Act 1979 (Cth).
c. AFP Superintendent means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter-Terrorism and Special Investigations Command, and includes any AFP Member authorised to perform duties or functions or otherwise act on behalf of a Superintendent within the Counter Terrorism and Special Investigations Command in connection with this control order.
d. Emergency means an actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health or yourself or a member of your immediate family, or threatens to destroy or damage the specified premises.
e. Emergency services means:
a. Victoria Police;
b. Ambulance Victoria;
c. the Victorian Country Fire Authority
d. Fire Rescue Victoria
e. the Victorian SES;
f. the AFP; or
g. the Poisons Information Centre.
f. Password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device.
g. Police officer means an AFP Member, or a ‘police officer’ within the meaning of the Victoria Police Act 2013 (Vic).
24.
Suspension of controls while in custody
24.1. Controls 1-23 do not apply during any period in which you are held by or on behalf of an officer in prison or remand centre of the Commonwealth, a State or a Territory.
24.2. Controls 1-23 resume their application at the conclusion of any period referred to in Control 24.1.
25.
Dis-application clause for de-radicalisation programs, treatment and engagement with authorities
25.1. Control 5.1(h) does not apply to:
a. anything you say in connection with your participation in counselling or education relating to your psychological and physical wellbeing in accordance with Control 20;
b. anything you say in connection with your participation in a disengagement program such as the Community Integration Support Program (CISP); or
c. anything you say in connection with engagement by you with members of the Victoria Police CVE Unit.
25.2. Controls 6.1(a) and 7.1 do not apply to the possession or viewing of documents that are required to be possessed or viewed by you by:
a. a member of the Victoria Police CVE Unit; or
b. a mentor assigned to you by the Community Integration Support Program (CISP).
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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