FEDERAL COURT OF AUSTRALIA

McCartney v EB [2019] FCA 183

ORDERS

THE COURT ORDERS THAT:

Interim control order

1.    The Court makes an interim control order pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) in the terms set out in the Schedule to these orders.

Confirmation hearing

2.    List the proceeding for hearing on 8 February 2019 at 10:15am.

Non-publication orders

3.    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.

4.    Order 3 is made on the ground set out in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

5.    Order 3 operates until further order.

6.    There is to be no publication of the form of these orders that includes any information concerning the sentencing proceeding involving the Respondent in the Supreme Court of New South Wales [redacted], including:

6.1.    the sentence imposed on the Respondent by the Supreme Court of New South Wales on [redacted], and

6.2.    the circumstances of the offending leading to that sentence.

7.    There is to be no publication of information connected to or derived from this proceeding concerning Control 7(iii)(i) in Annexure A to the Schedule to these orders.

8.    Orders 6 and 7 are made on the ground set out in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).

9.    Orders 6 and 7 operate until the earliest in time of:

9.1.    the conclusion of the trial of [redacted], date of birth [redacted] in the Supreme Court of New South Wales [redacted];

9.2.    the conviction of [redacted] following a plea of guilty, or

9.3.    further order.

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.    That 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:

2.1.    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 purpose of:

2.1.1.    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

2.1.2.    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 interim control order relates to the Respondent, EB.

4.    The obligations, prohibitions and restrictions to be imposed on the Respondent by this Interim Control Order are those set out in Annexure A to this Schedule.

5.    A summary of the grounds on which the order is made is set out in Annexure B to this Schedule.

6.    This Interim Control Order does not begin to be in force until it is served personally on the Respondent and the Respondent is released from custody.

7.    If this Interim Control Order is confirmed, the confirmed control order is to be in force for 12 months after the day on which this Interim Control Order is made.

8.    The Respondent may attend the Federal Court of Australia which is located at the Law Courts Building, 184 Phillip Street, Queens Square, Sydney NSW, on 8 February 2019 at 10:15am for the Court to:

8.1.    confirm (with or without variation) this Interim Control Order,

8.2.    declare this Interim Control Order to be void, or

8.3.    revoke this Interim Control Order.

9.    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 Interim Control Order.

Annexure A

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.    [redacted];

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.

 

 

Annexure B

1.    Having regard to the matters set out in both the ‘Statement of facts relating to why the order should be made’ and the ‘Statement of facts relating to why the order should not be made’, the grounds on which the order should be made can be summarised as follows.

2.    [redacted]. 1

3.    [redacted]. 2 [redacted]. 3

4.    [redacted]4 [redacted]. 5

5.    [redacted]. 6 [redacted]

6.    [redacted]:

6.1.    [redacted]. 7 [redacted].8

6.2.    [redacted]

7.    EB is heavily susceptible to the influence of others who hold extremist views, as well as the influence of extremist propaganda. He has accepted that is the case, and that being re-exposed to such persons may cause him to return to an extremist ideology. 9 (That is not to assume or accept that he has, in fact, genuinely renounced that ideology).

8.    EB has many associates with whom he discussed extremist ideology around the time of his offending, and who the AFP believes continue to hold extremist views and who have links with other extremists, including persons convicted of terrorism-related offences. 10

9.    In view of:

9.1.    the nature and circumstances of EB’s offending and the extreme ideology he held at the time of his offending;

9.2.    [redacted];

9.3.    EB’s history of susceptibility to being influenced by Islamic extremists and extremist propaganda;

9.4.    the large number of associates of EB who the AFP believes hold extremist views and who have links with other extremists,

9.5.    there is a real risk that EB, once released from custody, and in the absence of appropriate controls, will engage in similar conduct to that for which he has been convicted – namely, supporting or facilitating the engagement in a hostile activity in a foreign country.

10.    The AFP does not anticipate EB would, himself, commit a terrorist act. However, the matters set out in paragraphs 9.1 to 9.4 above indicate that there is a real risk that EB, once released from custody, and in the absence of appropriate controls, will direct his efforts to supporting or facilitating a terrorist act. The AFP’s experience in recent years is that as more and more Islamic extremists are prevented from travelling to foreign conflict zones due to their passports being cancelled, the risk of those persons shifting their focus to domestic terrorist acts increases. For example:

10.1.    Abdullah Chaarani and Ahmed Mohamed, had their passports cancelled in 2015. They subsequently undertook acts in preparation for a terrorist act together with Hamza Abbas (who never held an Australian passport), intended to be carried out in Melbourne’s central business district over the Christmas period in 2016, for which they were convicted in 2018. These preparations were motivated by support for Islamic State.

10.2.    Hassan Khalif Shire Ali had his passport cancelled in 2015. On 9 November 2018, he carried out a terrorist attack in Bourke Street, Melbourne, which included him setting fire to a vehicle and stabbing three people, one of whom died from his injuries. The Islamic State has claimed responsibility for this attack online.

10.3.    Milad Atai was refused a request for a renewed Australian passport in 2014. In November 2018 he was convicted of aiding and abetting a terrorist act, being the fatal shooting of Curtis Cheng outside New South Wales police Headquarters and offences relating to being a member of Islamic State and the organisation of funding and support for Islamic State. Atai was part of an online ‘WhatsApp’ closed chat group where he and others shared views and discussed ideas supportive of Salafi Islam and the Islamic State.

10.4.    Agim Kruezi intended to travel to Syria in 2014 to join in the fight against the Assad regime. Following the cancellation of his passport in 2014, he instead used the money set aside for his trip to Syria to plan an attack on Australian soil in a public place with the intention to die as a martyr in that attack. In doing so, he contemplated attracting and attacking law enforcement officers. He was subsequently convicted of making acts of preparation for a terrorist attack and making preparatory acts for incursion into a foreign state.

10.5.    Omarjan Azari’s passport was cancelled in 2013. He was subsequently convicted of offences of attempting to make funds available to Islamic State and committing an act in preparation for or planning a terrorist act. The latter conviction related to a phone conversation during which he discussed a plan for a future terrorist act or acts to be committed in Australia, namely the killing of random members of the public, with a senior Australian figure in Islamic State who was in Syria or Iraq at that time.

11.    These acts are consistent with directions given by the Islamic State to their supporters in the West to kill non-Muslims in Western countries. In September 2014, a senior leader of Islamic State, Sheikh Abu Muhammad Al-Adnani Al-Shami issued a ‘fatwa’ or religious degree entitled ‘Your Lord is Forever Watchful’, which urged supporters not to let ‘this battle pass you by wherever you may be’ and to ‘[k]ill the disbeliever whether he is civilian or military’.

12.    The change in the threat environment is such that there is a real risk that, as an alternative to seeking to support or facilitate a person travelling to Syria or Iraq to engage in a hostile activity, EB would, in the absence of appropriate controls, re direct his focus and efforts on supporting or facilitating a domestic terrorist act.

13.    The obligations, prohibitions and restrictions set out in the proposed interim control orders will ensure EB:

13.1.    is provided with the opportunity to engage positively with the community (through employment, religious observation, counselling and education);

13.2.    is capable of being monitored by police during his reengagement with the community; and

13.3.    is prohibited from engaging in those behaviours, and being exposed to those influences, which may lead him to provide support for or facilitate a terrorist act or the engagement in a hostile activity in a foreign country,

and thereby reduce the risks outlined above.

14.    The interim control order should be made notwithstanding the matters set out in the ‘Statement of facts relating to why the order should not be made’, for the following reasons:

14.1.    First, while EB has made statements suggesting he no longer holds an extreme or radical ideology, self-reporting of that kind should be treated with caution. This is because his engagement with extremist ideology was not fleeting but, rather, it was a pervasive and fundamental aspect of his life. In particular, EB was radicalised to the point where he not only consumed, but also created and propagated, significant amounts of extremist material, and his radicalised ideology led him to actively engage with a number of individuals in an effort to facilitate or encourage them joining the Islamic State.

Another reason for treating EB’s statements with caution is the fact that, as recently as October 2018, EB has been in possession of Salafist texts, including texts recently delivered to EB by 2 of his associates. 11 While the mere possession of such texts, in isolation, might not be concerning, EB’s possession of them must be considered in the context of the extreme and Salafi-inspired ideology he held during the time of his offending, and it does raise doubts as to whether he has truly abandoned a Salafi-inspired religious narrative. Furthermore, the fact that EB’s associates delivered some of these books to him illustrates the risk that he will be subject to negative influences upon his release from custody.

14.2.    Secondly, while ASIO has assessed EB likely does not currently hold an extremist ideology supportive of politically motivated violence, and that some ASIO information indicates he has moderated his views since his incarceration, the proposed controls are, collectively, directed at preventing EB from being re-exposed to the radicalising influences which gave rise to his previous offending, enabling police to effectively monitor EB’s conduct and behaviour and assisting EB to avoid situations where he may re-offend. If EB is re-exposed to radicalising influences, there is a very real risk he will provide support for or facilitate a terrorist act or the engagement in a hostile activity in a foreign country. In this context, it is important to note that ASIO acknowledges that EB likely remains vulnerable to the influence of his extremist former associates and ASIO assesses those associates are highly likely to have an adverse influence on his ideology.

14.3.    Third, while the JCTT has no information that EB presently wishes to, himself, undertake a terrorist attack or travel to join a terrorist organisation, the ultimate concern underpinning the application for an interim control order is the risk that EB will, upon his release, be exposed to radicalising influences which will cause him to support or facilitate a terrorist act or the engagement in a hostile activity in a foreign country ¬– not that he will, himself, undertake a terrorist attack or travel to join a terrorist organisation.

Furthermore, while the JCTT has assessed that EB is unlikely to have credible overseas terrorist contacts, this would not present a significant hurdle to him supporting or facilitating the engagement in a hostile activity in a foreign country should he wish to do so (and it would prevent no hurdle to EB supporting or facilitating a domestic terrorist act). Having regard to the background and connections of EB’s associates, as well as his increased notoriety based on his conviction, EB could readily establish overseas contacts who could assist in him facilitating others to engage in a hostile activity in a foreign country. Furthermore, he could support such activity even without such contacts.

Finally, while the JCTT has assessed that EB, in the short to medium term, is unlikely to re-offend, that is based on an assessment that EB’s intention during that time will be to avoid law enforcement scrutiny. The making of an interim control order will have the very effect of facilitating and enabling comprehensive law enforcement scrutiny of EB, such that he will be far less inclined to reoffend.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    In 2017, the respondent, who has been given the pseudonym EB to prevent the publication or disclosure of his identity, pleaded guilty to an offence under s 119.4(1) of the Criminal Code Act 1995 (Cth). The essence of that offence was that EB performed services for another person (AE) to assist him to enter Syria, with the intention of supporting or promoting AE to enter Syria and engage in hostile activities for certain objectives, including the overthrow by force or violence of the government of Syria. A judge of the Supreme Court subsequently sentenced EB to a term of imprisonment in respect of that offence. That term of imprisonment expires on 2 February 2019 and EB is due to be released on that day. The applicant, Mr Ian McCartney, is an Assistant Commissioner of the Australian Federal Police (AFP). On 13 December 2018, he filed an originating application in this Court which sought, amongst other things, an interim control order in relation to EB pursuant to s 104.4 of the Code.

2    Division 104 of the Code provides for the making of orders, called control orders, which impose obligations, prohibitions and restrictions on a person for the purpose of protecting the public from a terrorist act, preventing the provision of support for, or the facilitation of, a terrorist act and preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country. The making of an interim control order is, in effect, the first critical step in the making of a control order. Once an interim control order is made and served, it falls upon the applicant to approach the Court for confirmation of the order.

3    EB does not oppose the making of an interim control order. Indeed, in submissions made on his behalf by his legal representative, he indicated that he welcomed some of the conditions imposed or proposed to be imposed by the interim control order and expressed the view that they will “enable him to embark on a new path in life”. The final form of the obligations, prohibitions and restrictions which are set out in the interim control order have also been the subject of discussion and agreement between the parties.

4    Despite EB’s effective consent to the making of the proposed interim control order, it is nevertheless necessary for the Court to be satisfied that the statutory preconditions for the making of the interim control order have been satisfied. For the reasons that follow, I am satisfied that all of the preconditions have been satisfied and that an interim control order in the terms proposed should be made.

PRECONDITIONS FOR THE MAKING OF AN INTERIM CONTROL ORDER

5    There are effectively four preconditions for the making of an interim control order pursuant to s 104.4(1) of the Code.

First precondition – s 104.4(1)(a) of the Code

6    The first precondition is that a “senior AFP member” has requested an interim control order in accordance with s 104.3 of the Code: see s 104.4(1)(a) of the Code. It is unnecessary to dwell on this precondition. It is clear from the evidence before the Court that Mr McCartney is a senior AFP officer, as defined in the Code, and that he has requested an interim control order in accordance with s 104.3 of the Code.

7    Mr McCartney filed an affidavit which established that each of the requirements in s 104.3 of the Code had been satisfied. Those requirements include, relevantly, the provision of an explanation as to why each of the proposed obligations, prohibitions or restrictions should be imposed on EB and the provision of a copy of the “AFP Minister’s” written consent as required by ss 104.2 and 104.3(f) of the Code.

Second precondition – s 104.4(1)(b) of the Code

8    The second precondition is that the court has received and considered such further information (if any) as the Court requires: s 104.4(1)(b) of the Code. That precondition was not applicable to the particular circumstances of this case because the Court did not require any further information.

Third precondition – s 104.4(1)(c) of the Code

9    The third, and perhaps most substantial or critical, precondition requires the court to be satisfied on the balance of probabilities that the making of the interim control order would either substantially assist in preventing a terrorist act, or that the person against whom the interim control order is sought had engaged in certain conduct, or had been convicted of certain types of offences. Section 104.4(1)(c) of the Code, which imposes this precondition, is in the following terms:

104.4 Making an interim control order

(1) The issuing court may make an order under this section in relation to the person, but only if:

…

(c) the court is satisfied on the balance of probabilities:

(i)     that making the order would substantially assist in preventing a terrorist act; or

(ii)    that the person has provided training to, received training from or participated in training with a listed terrorist organisation; or

(iii)    that the person has engaged in a hostile activity in a foreign country; or

(iv)     that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or

(v)    that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or

(vi)    that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or

(vii)    that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; and

…

10    It was common ground between EB and Mr McCartney that this precondition was satisfied on the basis that the offence that had been committed by EB clearly revealed that he had, in terms of s 104.4(1)(c)(vii) of the Code, provided support for or otherwise facilitated the engagement in a hostile activity in another country. Mr McCartney contended, and EB conceded, that the nature of the conduct that gave rise to EB’s offence under s 119.4(5) of the Code fell within the terms of s 104.4(1)(c)(vii) of the Code.

11    Mr McCartney also contended the precondition in s 104.4(1)(c)(iv) of the Code had been satisfied in EB’s case. The essential basis of that contention was that the offence under s 119.4(5) of the Code which EB had committed was both an “offence relating to terrorism” and an “offence relating to a terrorist organisation”. The relevant terrorist organisation was said to be the organisation which is generally referred to as Islamic State.

12    EB disputed that the offence he committed was either an offence relating to terrorism or an offence relating to a terrorist organisation. He submitted that the agreed facts upon which he was convicted and sentenced, and the findings of fact made by the sentencing judge, did not sustain either proposition. The main thrust of his submission in that regard was that the facts surrounding EB’s offending conduct showed that, while he supported or facilitated AE’s entry into Syria in circumstances where he knew that AE intended to engage in hostile activities in Syria, those hostile activities did not involve acts that could necessarily be described as “terrorism” or terrorist acts. It was also submitted that, even though the facts suggested that EB had at certain stages been motivated by, or had supported Islamic State or their objectives, it did not follow that the offence he committed was one which related to Islamic State.

13    It is perhaps unnecessary for me to resolve the issue whether the facts of EB’s case satisfied the condition in s 104.4(1)(c)(iv) of the Code. That is because I am, in any event, satisfied on the balance of probabilities that EB had provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country and that, accordingly, s 104.4(1)(c)(vii) of the Code had been satisfied. That was a sufficient basis upon which to make the proposed interim control order. For more abundant caution, however, I nevertheless propose to address, albeit fairly briefly, whether s 104.4(1)(c)(iv) of the Code was also satisfied. That is because, despite EB’s concession, there is at least one potential issue about the applicability of the precondition in s 104.4(1)(c)(vii) to EB’s circumstances.

Section 104.4(1)(c)(vii) of the Code – supported or facilitated hostile activity in a foreign country

14    It is unnecessary for me to set out in any detail my reasons for being satisfied that this precondition was satisfied. As already indicated, EB conceded that it had been met. Perhaps more significantly, the fact that non-publication orders have been made in relation to EB’s sentence proceedings makes it undesirable for me to spell out at length, or at all, many of the facts and much of the evidence concerning the offence committed by EB. It suffices to say that I have read the agreed statement of facts upon which EB was sentenced for the offence under s 119.4(5) of the Code, together with the transcript of the sentencing hearing and the sentencing judge’s judgment or remarks on sentence. I have had regard to that material in determining whether, in committing the offence, EB had “provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country” as required by s 104.4(1)(c)(vii) of the Code.

15    It is tolerably clear, both from the central elements of the offence in s 119.4(5) of the Code, and from the facts upon which EB was sentenced, that EB’s offending conduct involved him providing services to AE with the intention, belief or expectation that AE would enter Syria and engage in hostile activities against the Syrian government consistent with the objectives of Islamic State. I am on that basis satisfied, on the balance of probabilities, that EB’s offending behaviour fell within the terms of s 104.4(1)(c)(vii) of the Code.

16    There is only one issue which I consider has the potential to impact on the question whether EB’s conduct fell within s 104.4(1)(c)(vii) of the Code. That issue arises because it would appear that, as events transpired, AE did not ultimately engage in any hostile activity in Syria. The question that arises is whether, for conduct to fall within s 104.4(1)(c)(vii) of the Code, it is sufficient for the person against whom a control order is sought to have engaged in conduct which provided support to, or facilitated, another person to engage in a hostile activity in another country, or whether it is also necessary for the other person to have in fact engaged in that hostile activity?

17    To answer that question, it is necessary to construe s 104.4(1)(c)(vii) of the Code. That is no easy task, as the language used is rather cumbersome and ambiguous. When close consideration is given to the text, purpose and context of s 104.4(1)(c)(vii) of the Code, however, the better view is that the conduct of the person against who a control order is sought will fall within s 104.4(1)(c)(vii) if it involved the support or facilitation of hostile activity in a foreign country by another person, even if that other person did not ultimately engage in that activity.

18    The first consideration which supports that construction of s 104.4(1)(c)(vii) concerns the objective or purpose of Div 104 of the Code. Despite the fact that a control order made pursuant to Div 104 imposes potentially onerous obligations, prohibitions and restrictions on a person, the purpose or objective of so doing is plainly protective, not penal. That is clear from s 104.1 of the Code. The protective purpose of the provisions in Div 104 supports a more beneficial and less restrictive construction of s 104.4(1)(c)(vii) of the Code than would be the case if it was a penal provision.

19    The second consideration is a contextual consideration. It would appear that each of the subparagraphs of s 104.4(1)(c) of the Code, with the possible exception of subparagraphs (i) and (vi), is directed to identifying conduct which had been engaged in by the person in respect of whom the control order is sought which would tend to indicate that there was a risk that the person might engage in or facilitate terrorist acts, or hostile activity in a foreign country, in the future. Considered in that context, past conduct by a person which involved the provision of support for, or the facilitation of, a hostile activity in a foreign country by another person is likely to indicate a risk that the person may well engage in similar conduct in the future, even if, as events transpired, the other person did not ultimately carry out any hostile activity.

20    The third consideration is a textual consideration. Even though the wording of s 104.4(1)(c)(vii) of the Code is rather cumbersome and ambiguous, it would appear to involve two elements. The first element is a conduct element: the person against whom the control order is sought has to have engaged in conduct which supported, or facilitated another person to engage in some activity. The second element is that the activity that was supported or facilitated was the engagement, by the other person, in a hostile activity in a foreign country. That element could be characterised either as a circumstance, or perhaps a fault element involving intention or belief. In any event, both of those elements can be satisfied even if the hostile activity was not ultimately engaged in by the other person. It is the conduct of the person against whom the control order is sought which is the focus of s 104.4(1)(c) of the Code, not the conduct of the person whose actions were supported or facilitated.

21    A hypothetical example may serve to illustrate this point. A person who supplies another person with a false passport, a weapon, and the names and contact numbers of members of a terrorist organisation in a foreign country, could be said to have engaged in conduct which supported or facilitated the other person to engage in some activity. It could also be said that the activity that was supported or facilitated involved, or was intended or believed to involve, hostile activity in that foreign country. That is so even if, for whatever reason, the other person ultimately did not or could not engage in that activity.

22    Such a reading of s 104.4(1)(c)(vii) of the Code by no means does violence to, or gives a strained meaning, to the text or language, and is entirely consistent with the object or purpose of Div 104, and the context in which s 104.4(1)(c)(vii) of the Code appears.

23    It follows that the fact that AE did not ultimately engage in any hostile activity does not mean that EB’s offending conduct did not relevantly fall within s 104.4(1)(c)(vii) of the Code.

Section 104.4(1)(c)(iv) of the Code – offence relating to terrorism

24    The first question is whether the offence committed by EB was an offence “relating to terrorism”.

25    Curiously, in a piece of legislation which, like most modern Commonwealth legislation, contains a plethora of labyrinthine definitional provisions, the expression “offence relating to terrorism” is not defined. Nor indeed, is the word “terrorism”. That is all the more curious given that the expression “terrorist act” is defined for the purposes of Pt 5.3 of the Code, which is entitled “Terrorism”. The Crimes Act 1914 (Cth) also defines “terrorism offence” and, as will be seen, that definition is relevantly picked up by s 104.4(1)(c)(v) of the Code.

26    The expression “terrorist act” is defined in lengthy and expansive terms in s 100.1 of the Code. Relevantly, it includes action that causes serious physical harm to a person, or causes serious damage to property, or causes death, or endangers a person’s life. An action does not constitute a “terrorist act”, however, if it is advocacy, protest, or dissent, and is not intended to cause the sorts of harm included in the definition. Importantly, as will be seen, the definition of “engage in a hostile activity”, which is used in ss 119.1 and 119.4(5) of the Code, picks up the definition of “terrorist act” in s 100.1 of the Code.

27    The definition of “terrorism offence” in s 3(1) of the Crimes Act includes, relevantly, an offence against Pt 5.5 of the Code. Section 119.4(5) is in Pt 5.5 of the Code.

28    It was submitted on EB’s behalf that, despite the fact that the offence committed by him was a “terrorist offence” as defined in the Crimes Act, it was nonetheless not an offence “relating to terrorism”. He submitted that terrorism offences were dealt with specifically in Div 101 of Pt 5.3 of the Code, whereas the offence committed by EB was in Div 119, which related to foreign incursion and recruitment offences. He also argued that the sentencing judge emphasised that the offence committed by EB was a foreign incursion offence which did not involve terrorism in Australia. He pointed out that the expression “engage in hostile activity”, which is a central element of the offence in s 119.4(5) of the Code, is defined broadly and includes activities which would not ordinarily be considered to fall within the ordinary meaning of “terrorism”.

29    In that context it should be noted that the ordinary meaning of “terrorism”, according to the Macquarie Dictionary (2019), is:

The use of methods to induce terror, especially the use of violence against persons or property to coerce a government or to intimidate a civilian population, or any part of it, to achieve political or social objectives.

30    It may be observed that the ordinary meaning of “terrorism” is fairly broad; perhaps broader than the defined expression “terrorist act”.

31    It should also be noted that the expression “relating to” has been said to have an extremely wide operation, and to require little or no more than that there be some connection or association between the things in question: see, for example, Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [87]. The two things in question in the expression “relating to terrorism” are “offence” and “terrorism”.

32    Despite EB’s submissions to the contrary, I am satisfied on the balance of probabilities that the offence committed by him was an offence relating to terrorism. That is so for a number of reasons.

33    First, it is difficult to accept the proposition that an offence which is expressly included within the Crimes Act definition of “terrorism offence” may nevertheless not be an “offence relating to terrorism”.

34    Second, it is of little moment that Div 101 of Pt 5.3 of the Code has the heading “Terrorism”, whereas the offence committed by EB is within Div 119, which is headed “Foreign Incursions and Recruitment”. There is no sound basis to conclude that only offences within Div 101 can be offences relating to terrorism. That would exclude, for example, offences within Div 103, which relate to financing terrorism. It is difficult to accept that an offence involving the financing of terrorism would not be an “offence relating to terrorism” simply because it is not in Div 101 of Pt 5.3 of the Code.

35    Third, and related to the second point, there are clear indications that Parliament intended that the expression “offence relating to terrorism” in s 104.4(1)(c)(iv) of the Code would include, but not be limited, to “terrorist offences” as defined in the Crimes Act. The text of s 104.4(1)(c)(iv) of the Code may be contrasted with the text of s 104.4(1)(c)(v) of the Code, which relates to offences in foreign countries. An offence committed in a foreign country falls within s 104.4(1)(c)(v) of the Code if it was constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence within the meaning of s 3(1) of the Crimes Act. It would follow that if a person engaged in conduct overseas that would, had it been engaged in in Australia, have constituted an offence against s 119.4(5) of the Code, it would fall within s 104.4(1)(c)(v) of the Code. The effect of EB’s submission, however, is that if the person engaged in exactly the same conduct in Australia, while that would amount to an offence under s 119.4(5) of the Code, it would nevertheless not satisfy the requirements of s 104.4(1)(c)(iv) of the Code because it was not an offence relating to terrorism. That would be a rather odd, if not absurd, result.

36    Fourth, even if it be accepted that some of the actions that would fall within the defined meaning of “engage in a hostile activity” for the purposes of s 119.4(5) might not constitute what would generally be considered to be terrorism, or acts of terrorism, the agreed facts upon which EB was sentenced, and the findings of the sentencing judge, would suggest that, when EB performed services for AE with the intention of supporting or promoting the commission by that person of an offence against s 119.1 of the Code, it was clear that EB knew or expected that AE would, or intended to, engage in acts which would constitute terrorism. The specific facts of EB’s offending conduct clearly show that the offence committed by him related to terrorism.

37    For the reasons earlier explained, it is undesirable to go into any detail concerning the particular facts and circumstances of EB’s offending conduct. It suffices for present purposes to say that the evidence and facts show that EB knew that AE was in possession of military equipment which he intended to use in Syria for violent ends against the Syrian government and its supporters. The ordinary meaning of “terrorism” is sufficiently broad to encompass the sort of activity that EB knew or expected that AE would, or intended to, engage in. Indeed, the activity that EB knew or expected AE to engage in would likely fall within the definition of “terrorist act” in s 100.1 of the Code.

38    Fifth, the passages of the sentencing judge’s remarks on sentence that were relied on by EB did not amount to a finding that EB had not committed an offence relating to terrorism. Fairly read, his Honour was simply distinguishing, for sentencing purposes, the offence committed by EB from cases which concerned acts of domestic terrorism in Australia. There was and is no suggestion that EB had any involvement with any act of terrorism in Australia.

39    It follows that I am satisfied on the balance of probabilities that the offence committed by EB was an offence relating to terrorism for the purposes of s 104.4(1)(c)(iv) of the Code.

Section 104.4(1)(c)(iv) of the Code – offence related to a terrorist organisation

40    I am not, however, satisfied on the balance of probabilities that the offence committed by EB was an offence relating to a terrorist organisation.

41    There was evidence that EB was in possession of propaganda and other material disseminated by Islamic State. The evidence also suggested that EB had been influenced and motivated, at least to some extent, by that propaganda. He had also contacted persons who he believed were members or supporters of Islamic State for the purpose of assisting AE.

42    It was common ground that Islamic State was a terrorist organisation, as defined. It does not necessarily follow, however, that the offence committed by EB was an offence relating to Islamic State or any other terrorist organisation.

43    The expression “offence relating to a terrorist organisation” would appear to be more specifically directed to the sort of conduct which would constitute an offence within Div 102 of the Code, including offences such as directing the activities of a terrorist organisation contrary to s 102.2 of the Code and membership of a terrorist organisation contrary to s 102.3 of the Code.

44    Even if not so limited, I am not satisfied on the balance of probabilities that the facts upon which EB was convicted, and the finding of the sentence judge, establish that EB’s offence relevantly related to Islamic State. In my view, an offence is not one relating to a terrorist organisation merely because the facts upon which the offender was convicted and sentenced involved a terrorist organisation in some way. More particularly, in the case of EB, the mere fact that he had been found to be in possession of, and appears to have been influenced by, Islamic State propaganda, does not without more mean that his offence related to Islamic State. Nor does the fact that EB contacted people who he believed were members of Islamic State, or were sympathetic to Islamic State, for the purpose of facilitating AE’s travel to Syria.

Fourth precondition – s 104.1(1)(d)

45    The fourth pre-condition for the making of an interim control order is the pre-condition set out in s 104.4(1)(d) of the Code, which provides as follows:

104.4 Making an interim control order

(1)     The issuing court may make an order under this section in relation to the person, but only if:

    ….

(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

(iii)     preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.

46    Sections 104.4(2) and (2A) of the Code set out a number of relevant considerations that the Court must have regard to in determining whether each of the obligations, prohibitions and restrictions to be imposed on the person the subject of the order is reasonably necessary, and reasonably appropriate and adaptive for the relevant purposes.

47    In Thomas v Mowbray (2007) 233 CLR 307, Gleeson CJ explained the exercise involved in s 104.4(1)(d) of the Code as one involving proportionality. His Honour said (at [19]):

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.

48    Gummow and Crennan JJ considered that the pre-condition in s 104.4(1)(d) of the Code involved a balancing exercise. Their Honours said (at [99]):

Section 104.4(1) requires in para (d) that each of these be measured against what is “reasonably necessary” and also against what is “reasonably appropriate and adapted” for attainment of the purpose of public protection from a terrorist act. This is weighed with the impact upon the circumstances of the person in question as a “balancing exercise” (s 104.4(2)).

49    It is worth noting that those passages from Thomas v Mowbray concerned orders which were said to be for the purpose of protecting the public from a terrorist act, that being the purpose set out in s 104.4(1)(d)(i) of the Code. The basis of Mr McCartney’s application for interim control orders in relation to EB was that the interim control order was reasonably necessary, and reasonably appropriate and adapted for the purpose of preventing the provision of support for or the facilitation of a terrorist act, or preventing the provision of support for or the facilitation of the engagement in hostile activity in a foreign country, as provided in ss 104.4(1)(d)(ii) and (iii) of the Code. The same principles no doubt apply to those subparagraphs.

50    There was ultimately no dispute between the parties that the obligations, prohibitions and restrictions in the proposed interim control order were reasonably necessary, and reasonably appropriate and adapted for the purposes set out in ss 104.4(1)(d)(ii) and (iii) of the Code. Indeed, as noted earlier, EB submitted that he supported some of the proposed conditions and that he also consented to the others. He certainly did not submit that any of the conditions were not reasonably necessary, or not reasonably appropriate and adapted for those purposes. It should also be noted that EB, who is a young man, indicated that his family also supported the terms of the interim control order.

51    In light of what effectively amounted to consent to the making of the interim control order, and the absence of any submission to the effect that the precondition in s 104.4(1)(d) of the Code was not satisfied, I do not propose to address the specific obligations, prohibitions and restrictions in the proposed order in any great detail. Suffice it to say that I have carefully considered the terms of the proposed obligations, prohibitions and restrictions, as well as Mr McCartney’s detailed explanation of those obligations, prohibitions and restrictions, his explanation of the rationale and purpose of them, and his opinion as to why they are reasonably necessary, and reasonably appropriate and adapted for the purpose of preventing the provision of support for or the facilitation of a terrorist act, or preventing the provision of support for or the facilitation of an engagement in a hostile activity in a foreign country. I accept Mr McCartney’s explanations and reasoning. I have also considered, and accept, the detailed written submissions filed on behalf of Mr McCartney in respect of that issue.

52    In all the circumstances, I am satisfied that the precondition in s 104.4(1)(d) of the Code has been satisfied.

CONCLUSION AND DISPOSITION

53    It follows that I am satisfied on the balance of probabilities that each of the four preconditions for the making of the interim control order have been satisfied.

54    I am also satisfied in the circumstances, particularly having regard to EB’s effective consent that it is appropriate to make the interim control order in the terms proposed by Mr McCartney. There are also a number of other procedural orders that are necessary to be made. They were largely agreed between the parties.

55    Orders will be made in accordance with the short minutes of order provided to the Court on behalf of Mr McCartney.

Associate:

Dated:    22 February 2019