FEDERAL COURT OF AUSTRALIA

McCartney v EB (No 2) [2019] FCA 184

File number:

NSD 2324 of 2018

Judge:

WIGNEY J

Date of judgment:

22 February 2019

Catchwords:

CRIMINAL LAW control orders – application for confirmation of control order pursuant to s 104.14 of the Criminal Code Act 1995 (Cth) – where AFP met preconditions for confirmation of control order – where control order appropriate in circumstances – whether the obligations, prohibitions and restrictions contained in the control orders were on the balance of probabilities reasonably necessary, reasonably appropriate and adapted for their purpose – control order confirmed without variation

Legislation:

Criminal Code Act 1995 (Cth) ss 104.2, 104.3, 104.4, 104.12, 104.12A, 104.14, 104.15

Cases cited:

McCartney v EB [2019] FCA 183

Date of hearing:

8 February 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Federal Crime and Related Proceedings

Category:

Catchwords

Number of paragraphs:

26

Counsel for the Applicant:

Mr P Melican

Solicitor for the Applicant:

Australian Government Solicitor

Solicitor for the Respondent:

Mr M Davis of Mark Davis Legal

ORDERS

NSD 2324 of 2018

BETWEEN:

IAN MCCARTNEY

Applicant

AND:

EB

Respondent

JUDGE:

WIGNEY J

DATE OF ORDER:

22 February 2019

THE COURT ORDERS THAT:

Confirmed control order

1.    Pursuant to s 104.14(7)(c) of the Criminal Code Act 1995 (Cth), the Court confirms (without variation) the interim control order made in relation to the respondent on 30 January 2019. The terms of the confirmed control order are set out in the Annexure to these orders.

Non-publication orders

2.    There is to be no publication of the form of these orders that includes any information that might identify the Respondent, including his name, address, date of birth and the identity of his parents’ neighbours.

3.    Order 2:

(a)    is made on the ground set out in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth); and

(b)    operates until further order.

Access to documents

4.    Order 27 made on 20 December 2018 does not apply to the following documents:

(a)    the redacted version of the affidavit of Ian McCartney filed 4 February 2019;

(b)    the redacted version of the affidavit of Michael Vita filed 4 February 2019;

(c)    the redacted version of the affidavit of Crosbi Knight filed 4 February 2019;

(d)    the redacted version of the affidavit of Rodger Shanahan filed 4 February 2019; and

(e)    the redacted version of the Originating Application filed 7 January 2019.

5.    For the purposes of r 2.32(3)(a) of the Federal Court Rules 2011 (Cth), and until further order, the Applicant’s written submissions dated 18 January 2019 are confidential and shall not be accessible by a non-party.

6.    Order 5 does not apply to the redacted version of the Applicant’s submissions filed 4 February 2019.

THE COURT NOTES THAT:

The Court notes that order 5 of the orders made on 20 December 2018 and orders 6 and 7 of the orders made on 30 January 2019 are no longer in force because the event set out in order 7(b) of the orders made on 20 December 2018 has occurred.

Endorsement pursuant to Rule 41.06

To: [redacted]

You will be liable to imprisonment, sequestration of property or punishment for contempt if:

(a)    for an order that requires you to do an act or thing - you neglect or refuse to do the act or thing within the time specified in the order; or

(b)    for an order that requires you not to do an act or thing - you disobey the order.

SCHEDULE

1.    The Court is satisfied on the balance of probabilities that:

1.1.    The Respondent has been convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Criminal Code Act 1995 (Cth)); and

1.2.    The Respondent has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country (s 104.4(1)(c)(vii) of the Criminal Code Act 1995 (Cth)).

2.    The Court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the Respondent by the confirmed control order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:

2.1.    Preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Criminal Code Act 1995 (Cth)); and

2.2.    Preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (s 104.4(1)(d)(iii) of the Criminal Code Act 1995 (Cth)).

3.    This confirmed control order relates to the Respondent, [redacted].

4.    The obligations, prohibitions and restrictions to be imposed on the Respondent by this confirmed control order are those set out in the Annexure to this Schedule.

5.    This confirmed control order is to be in force until and including 30 January 2020.

6.    The Respondent’s lawyer may attend the AFP Sydney office at 110 Goulburn Street, Sydney NSW between 9:00 am and 4:00 pm, Monday to Friday in order to obtain a copy of this confirmed control order.

ANNEXURE

Control 1

1.    You are required to remain at the specified premises:

(i)    nominated by you within 24 hours from the time that this Control Order comes into force; and

(ii)    approved in writing by the JCTT Coordinator;

between the hours of 10:00pm and 6:00am each day from the day on which the Control Order comes into force until the day that the Control Orders ceases to be in force, unless:

(iii)     you are incarcerated in a correctional facility or otherwise in the custody of law enforcement authorities; or

(iv)     you contact the JCTT Coordinator in writing:

a.    requesting an exemption to the requirements of Control 1 and

b.    the JCTT Coordinator approves the exemption in writing.

Control 2

2.    You are required to report to a member of the NSW Police Force every Monday, Wednesday and Saturday, between 6:30am and 9:30pm, at Merrylands Police Station, 15-17 Memorial Avenue, Merrylands NSW 2160, unless:

(i)    you contact the JCTT Coordinator in writing requesting an exemption to this requirement; and

(ii)    the JCTT Coordinator approves the exemption in writing.

Control 3

3.    You are prohibited from being at any of the following areas without the prior written approval of the JCTT Coordinator:

(i)    any Australian airport which has an international point of departure, or from which a person can board or charter a flight for an international destination; and

(ii)    any Australian port which has an international point of departure, or from which a person can board or charter a marine vessel for an international destination; and

(iii)     inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there;

(iv)     at the residence of any of the persons named in Control 7(iii).

(v)    any place in Australia outside the state of New South Wales unless:

a.    you contact the JCTT Coordinator in writing requesting approval to travel in Australia, outside of NSW, for a specific period of time; and

b.    the JCTT Coordinator consents to the proposed travel in writing.

Control 4

4.    You are prohibited from leaving Australia for any period of time while the Control Order is in force.

Control 5

5.    You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely:

(i)    accessing, acquiring, possessing, producing, storing or distributing documents or electronic media (including documents in electronic form), or attempting to access, acquire, possess, produce, store or distribute documents or electronic media (including documents in electronic form), which relate to any of the following:

a.    explosives, explosive devices, initiation systems or firing devices;

b.    firearms, ammunition or knives;

c.    anti-surveillance or counter surveillance.

(ii)    accessing, acquiring, possessing, producing, storing or distributing documents or electronic media (including documentation in electronic form), or attempting to access, acquire, possess, produce, store or distribute documents or electronic media (including documents in electronic form), depicting or describing any:

a.    execution;

b.    beheading;

c.    suicide attack;

d.    bombing;

e.    terrorist attack;

f.    propaganda and promotional material for a terrorist organisation; or

g.    activities of, or associated with, the Islamic State, being the organisation listed pursuant to the Criminal Code (Terrorist Organisation – Islamic State) Regulation 2014 (Cth).

unless that material is broadcast on Australian free to air television, Australian pay television or in a commercial movie cinema and has been given a classification by the Australian Office of Film and Literature Classification.

Control 6

6.    You are prohibited from possessing or using any of the following specified articles or substances, or causing any person to act on your behalf to possess or use any of these specified articles or substances, namely:

(i)    firearm or ammunition; and

(ii)    any quantity of any chemical which is not consistent with reasonable domestic use.

If work-related use of chemicals would exceed reasonable domestic quantities:

(iii)     you may seek approval from the JCTT Coordinator in writing for an exemption to the prohibition in Control 6;

(iv)     you are prohibited from possessing or using the chemicals in question unless and until the JCTT Coordinator approves the exemption in writing; and

(v)    the JCTT Coordinator may approve the exemption subject to conditions.

Control 7

7.    You are prohibited from communicating or voluntarily associating with:

(i)    any person incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility.

(ii)    any person located in Turkey, Iraq or Syria.

(iii)     any of the following specified individuals:

a.    Abdulla AZARI (DOB 31 December 1994);

b.    Mehmet BIBER (DOB 15 August 1992).

c.    Kamal JALAL (DOB 18 February 1994);

d.    Omar JAWABREH (DOB 29 June 1993);

e.    Mahmoud SUMREIN (DOB 11 June 1990); and

f.    Cem TEKIRDAG (DOB 27 November 1991);

g.    Mohammad Junaid THORNE (DOB 10 June 1989);

h.    Seeyar SIDDIQI (DOB 11 April 1996);

i.    Amin ELMIR (DOB 2 October 1989);

j.    Oliver BRIDGEMAN (DOB 20 February 1997);

k.    Miassar HAMDAN (DOB 21 June 2000);

l.    Manar HOUSSEIN (DOB 15 October 1999),

unless you contact the JCTT Coordinator in writing:

a.    requesting an exemption to the prohibition; and

b.    the JCTT Coordinator approves the exemption in writing.

(iv)     Control 7[redacted] does not prohibit you from residing in premises that neighbour premises in which [redacted] resides.

Control 8

8.    You are prohibited from accessing or using any of the following specified forms of telecommunications technology or other technology, or to cause any person to access or use such telecommunications technology or other technology on your behalf:

(i)    any mobile telephone service (including any telephone service card, subscriber identification module card (SIM card) or account) other than a service approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:

a.    you nominate each mobile telephone service; and

b.    you provide the JCTT Coordinator with sufficient detail to identify the mobile telephone service you will be accessing or using.

(ii)    any fixed or landline telephone service other than one that has been approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:

a.    you nominate each fixed or landline telephone service; and

b.    you provide the JCTT Coordinator with sufficient detail to identify the fixed or landline telephone service that you will be accessing or using.

(iii)     any public telephone except in the case of an emergency, provided that you contact the JCTT Coordinator as soon as possible after accessing or using such a public telephone and:

a.    provide sufficient detail to the JCTT Coordinator to identify the public telephone that you accessed or used; and

b.    you explain the nature of the emergency which required you to access or use that public telephone.

(iv)     any satellite telephone service; and

(v)    any Voice Over Internet Protocol (VOIP) service, including any software, mobile application or hardware that will facilitate a VOIP service (for example, but not limited to, 'FaceTime', 'WhatsApp', 'Viber', 'Telegram' and 'Skype'), other than one that has been approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:

a.    you nominate each VOIP service, including any software or hardware that will facilitate a VOIP service; and

b.    you provide the JCTT Coordinator with sufficient detail to identify the service you will be accessing or using.

(vi)     any internet based messaging service, including any software, mobile application or hardware that will facilitate the internet based messaging service (for example, but not limited to, 'WhatsApp', 'Viber' and 'Telegram') other than one that has been approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:

a.    you nominate each internet based messaging service, including any software or hardware that will facilitate the service; and

b.    you provide the JCTT Coordinator with sufficient detail to identify the service you will be accessing or using.

(vii)     any internet service provider account other than one approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:

a.    you nominate each internet service provider account;

b.    that internet service provider account is operated and hosted within Australia; and

c.    you provide the JCTT Coordinator with sufficient detail to identify the account you will be accessing or using.

(viii)     any electronic mail (email) account other than one approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:

a.    you nominate each email account;

b.    the email account is operated and hosted in Australia; and

c.    you provide the JCTT Coordinator with sufficient details to identify the nominated account which you will be accessing or using, and

(ix)     any computer or tablet device other than one approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided:

a.    you nominate each computer and tablet device; and

b.    you provide sufficient detail to the JCTT Coordinator to identify the nominated computer and tablet device which you will be accessing or using.

Control 9

9.    You are required to consider in good faith participating in counselling or education relating to your spiritual, emotional and physical wellbeing, with a suitably qualified professional counsellor or publicly recognised religious leader, for at least 60 minutes every week. If you agree to participate in such counselling or education:

(i)    you may nominate the suitably qualified professional counsellor or religious leader with whom you will undertake the counselling or education;

(ii)    if you do not nominate a suitably qualified professional counsellor or religious leader, or if the JCTT Coordinator does not consider the person you have nominated is suitably qualified or appropriate to provide the counselling or education, the JCTT Coordinator will nominate such a person for your consideration; and

(iii)     you may change your counsellor or religious leader at any time to another person.

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

 


REASONS FOR JUDGMENT

WIGNEY J:

1    On 30 January 2019, the Court made an interim control order (ICO) pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) against the respondent, EB: McCartney v EB [2019] FCA 183 (the ICO Judgment). The applicant, Mr Ian McCartney, now applies for confirmation of the ICO without variation pursuant to s 104.14(7)(c) of the Code. EB did not object to confirmation of the ICO, though he took issue with one aspect of the terms of the order.

2    For the reasons that follow, the ICO should be confirmed in the terms proposed by Mr McCartney.

3    For s 104.14 of the Code to apply three conditions must be satisfied: see s 104.14(1A) of the Code. They are: first, that an ICO has been made in relation to a person; second, that an election under s 104.12A to confirm the order has been made; and third, that the Court is satisfied on the balance of probabilities that s 104.12 and subs 104.12A(2) have been complied with in relation to the order.

4    Each of those three conditions has been satisfied, or has been shown to have been satisfied, in relation to the order made in relation to EB.

5    First, as already indicated, an ICO was made in relation to EB on 30 January 2019.

6    Second, there is evidence that Mr McCartney has made an election to confirm the ICO in accordance with s 104.12A of the Code. Subsection 104.12A(1) of the Code provides that at least 48 hours before the day specified in the ICO as the date on which the person may attend court for the court to confirm, revoke or declare the ICO to be void, the senior Australian Federal Police (AFP) officer who requested the ICO must elect whether to confirm the order and give a written notification of the election to the issuing court. There is evidence before the Court that on 31 January 2019 Mr McCartney signed a notification of an election to confirm the ICO which was made in relation to EB. A copy of that notification has been provided to the Court.

7    Third, there is evidence before the Court which is sufficient to prove, on the balance of probabilities, that ss 104.12 and 104.12A(2) of the Code have been complied with. Section 104.12 provides that as soon as possible after an ICO is made, and at least 48 hours before the day on which the person may attend court for the court to confirm, revoke or declare the ICO to be void, an AFP member must: serve the order personally on the person in relation to whom the order was made; inform the person of the information specified in s 104.12(1)(b); and must ensure that the person understood that information. Section 104.12A(2) provides that the senior AFP officer must also serve on the person in relation to whom the ICO was made a copy of the notification of election to confirm, together with the documents referred to in ss 104.2(3)(aa) and 104.3(d) of the Code. Those documents are, in short terms, documents that were provided for the purpose of the making of the ICO.

8    There is evidence before the Court that the requirements in both ss 104.12 and 104.12A(2) of the Code have been complied with. The ICO, the notification of election to confirm and the 104.2(3)(aa) and s 104.3(d) documents were served on EB on 1 February 2019. The AFP officer who served those documents also informed EB of the s 104.12(1)(b) information and took steps to ensure that EB understood that information. EB’s solicitor was present at that time.

9    It follows that the conditions necessary for s 104.14 of the Code have been satisfied and the Court can entertain the application to confirm the ICO made in relation to EB.

10    Both Mr McCartney and EB were legally represented at the hearing of the confirmation application. Submissions were made on behalf of both parties as permitted by s 104.12(1) of the Code. Evidence was also adduced by Mr McCartney as also provided for in s 104.12(1) of the Code. That evidence essentially comprised affidavit evidence which proved compliance with ss 104.12 and 104.12A of the Code, together with the evidence which was adduced in support of the application for the ICO.

11    Subsections 104.14(3) and (3A) of the Code are somewhat curious provisions. They are in the following terms:

(3)     Subject to subsection (3A), before taking action under this section, the court must consider:

(a) the original request for the interim control order; and

(b)    any evidence adduced, and any submissions made, under subsection (1) in respect of the order.

(3A)    To avoid doubt, in proceedings under this section, the issuing court:

(c)    must take judicial notice of the fact that the original request for the interim control order was made in particular terms; but

(d)    may only take action on evidence adduced, and submissions made, under subsection (1) in relation to the confirmation of the order.

12    The combined effect of ss 104.14(3) and (3A) of the Code would appear to be that, before making an order confirming an ICO or otherwise: first, the Court must take into consideration the terms of the ICO which has been made; second, it is unnecessary for either party to tender the ICO, as the Court must in any event take judicial notice of it; and third, the Court can only act on the evidence adduced for the purposes of, and the submissions made at the hearing of, the confirmation application. It follows from the last mentioned point that, even if the evidence and circumstances remain unchanged from the time that the ICO was made, the person who applies for confirmation of the ICO is required to tender afresh the evidence relied on at the ICO stage. That is what occurred in this case.

13    Subsection 104.14(4) of the Code makes provision for the making of a confirmation order if there is no appearance at the hearing, and s 104.14(5) of the Code provides that the Court may make an order revoking, confirming with variation or confirming without variation the ICO if the person in relation to whom the order is made or a representative of that person attends court on the day specified for the hearing of the confirmation application. As noted earlier, EB was represented by a solicitor at the confirmation hearing. Subsection 104.14(6) of the Code provides for the circumstances in which the court may declare the ICO to be void. Subsection 104.14(7) of the Code provides as follows:

(7) Otherwise, the court may:

(a)     revoke the order if, at the time of confirming the order, the court is not satisfied as mentioned in paragraph 104.4(1)(c); or

(b) confirm and vary the order by removing one or more obligations, prohibitions or restrictions if, at the time of confirming the order, the court is satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or

(c)     confirm the order without variation if, at the time of confirming the order, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d).

14    The critical question on this application is accordingly whether the Court is satisfied “as mentioned in” ss 104.4(1)(c) and (d) of the Code. Importantly, particularly in the context of this matter, the Court was required to be satisfied on the balance of probabilities of the facts or circumstances set out in ss 104.4(1)(c) and (d) of the Code before making the ICO. In EB’s case, the Court was so satisfied: ICO Judgment at [9] – [52]. In short terms, the Court was satisfied, on the balance of probabilities: first, that EB had been convicted in Australia of an offence relating to terrorism and had provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country, and therefore the circumstances referred to in ss 104.4(1)(c)(iv) and (vii) of the Code were met in EB’s case; and second, that each of the obligations, prohibitions and restrictions to be imposed on EB by the ICO were reasonably necessary, and reasonably appropriate and adapted, for the purpose of 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, and therefore the conditions referred to in ss 104.4(1)(d)(ii) and (iii) of the Code were met.

15    One might readily think that, where the Court was satisfied “as mentioned in” ss 104.4(1)(c) and (d) of the Code at the ICO stage, the same evidence was relied on in support of the confirmation of the ICO, and the parties did not suggest that any facts or circumstances had changed, it would almost inevitably follow that the Court would again be satisfied as mentioned in s 104.4(1)(c) of the Code at the confirmation stage. It was, however, submitted on EB’s behalf, in relation to the confirmation application, that the Court should nonetheless not be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on EB by the ICO were reasonably necessary, and reasonably appropriate and adapted, for the purpose of preventing the provision of support for or the facilitation of a terrorist act within the meaning of s 104.4(1)(d)(ii) of the Code.

16    It should be noted, in this context, that no such submission was made on EB’s behalf at the ICO stage. It was submitted that the offence in respect of which EB had been convicted was not an “offence relating to terrorism” for the purposes of s 104.4(1)(c)(iv) of the Code. That submission was rejected for the reasons set out in the ICO Judgment at [24]-[39]. Perhaps more significantly, it was not submitted on EB’s behalf, either at the ICO stage or at the confirmation stage, that the Court should not, or could not, be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on EB by the ICO was reasonably necessary, and reasonably appropriate and adapted, for the purpose of preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. Indeed, EB effectively conceded that the condition in s 104.4(1)(d)(iii) of the Code had been satisfied. Given the nature of the offence for which EB was convicted, that concession was hardly surprising.

17    In any event, the effect of EB’s submission in respect of the confirmation of the ICO was that, even if the Court was satisfied that the offence that had been committed by EB was an offence relating to terrorism for the purposes of s 104.4(1)(c)(iv) of the Code, it was a “step too far” to conclude that there was any proper basis upon which to conclude that the obligations, prohibitions and restrictions to be imposed on EB by the control order, if confirmed, were reasonably necessary, and reasonably appropriate and adapted, for the purpose of preventing the provision of support for or the facilitation of a terrorist act. It was emphasised, in that regard, that the offence that had been committed by EB was one which related to the provision of support for, or the facilitation of the engagement in, a hostile activity in a foreign country. There had, in EB’s submission, been no suggestion, let alone evidence, that he had engaged in a terrorist act.

18    The submission advanced on EB’s behalf, however, misconceived both the evidence and the reasons put forward by Mr McCartney in support of both the ICO and the confirmation of the ICO. Mr McCartney did not contend that the Court should be satisfied that the condition in 104.4(1)(d)(ii) of the Code had been satisfied simply on the basis that EB had been convicted of an offence “relating to terrorism” for the purposes of s 104.4(1)(c)(iv) of the Code. It was, in that context, rightly conceded that the offence in respect of which EB had been convicted did not involve him carrying out a terrorist act in Australia. Rather, that offence was one which involved EB supporting or facilitating another person to engage in a hostile activity in a foreign country in circumstances where that hostile activity could have properly have been characterised as a terrorist act. More significantly, Mr McCartney’s contention that 104.4(1)(d)(ii) of the Code was satisfied in EB’s case was not based simply on his past conviction. Rather, it was supported by evidence of assessments by both the AFP and the Australian Security Intelligence Organisation (ASIO).

19    It is both unnecessary and undesirable to refer in any great to the AFP and ASIO assessments, particularly given the confidentiality orders that have been made. It is sufficient, for present purposes, to note that the AFP had assessed that while it did not anticipate that EB would, himself, commit a terrorist act, there was nonetheless a real risk that EB, once released from custody, would, if not subject to “appropriate controls”, direct his efforts to supporting or facilitating a terrorist act, including possibly in Australia. The bases for that assessment included: in short terms, the nature and circumstances of EB’s offending and the “extreme ideology” he held at the time of that offending; EB’s history of susceptibility to being influenced by Islamic extremists and extremist propaganda; the large number of former associates of EB who the AFP believe hold extremist views; and the AFP’s experience that Islamic extremists in Australia who have been prevented from travelling to foreign conflict zones have tended to shift their focus to domestic terrorism. The AFP assessment was not challenged or in any way disputed by EB.

20    Similarly, there was evidence that, while ASIO had indicated that it held no information to indicate that EB would present a significant risk of “onshore PMV [politically motivated violence]”, it nevertheless assessed that EB “likely remains vulnerable to the influence of his extremist former associates” who are “likely to have an adverse influence on [EB’s] ideology, particularly if he engages with them in a group context on release”. It should be emphasised, in that context, that one of the main purposes of the ICO is to prevent EB being subjected to the influence of his extremist former associates. The AFP assessment was not challenged or disputed by EB.

21    The relevant principles in relation to s 104.4(1)(d) of the Code were discussed, albeit fairly briefly, in the ICO Judgment at [45] – [49]. As there noted, s 104.4(1)(d) of the Code involves the evaluation and balancing of the various considerations listed in ss 104.4(2) and (2A) of the Code, having regard to the particular facts and circumstances of the case. Broadly speaking, the requirement is one involving proportionality.

22    On the whole of the evidence, including the AFP and ASIO assessments, I am satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on EB by the ICO is reasonably necessary, and reasonably appropriate and adapted, for the purpose of both 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.

23    As previously indicated, I am also satisfied that EB had been convicted in Australia of an offence relating to terrorism and had provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country. It follows that, for the purposes of s 104.14(7)(c), I am satisfied “as mentioned in” ss 104.4(1)(c) and (d) of the Code.

24    I am accordingly satisfied that all of the conditions or requirements for the confirmation of the ICO which has been made in relation to EB have been satisfied. I am also satisfied that it is appropriate in all the circumstances for the ICO to be confirmed. Neither party suggested that there was any discretionary reason why the ICO should not be confirmed, nor was any such reason apparent from any of the material before the Court.

25    I should reiterate and emphasise, particularly for the benefit of EB, that it was not and is not suggested that the making of the ICO would substantially assist in preventing a terrorist act within the meaning of s 104.4(1)(c)(i) of the Code. Nor was it or is it suggested that the obligations, prohibitions and restrictions to be imposed on him by the order were reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act as provided for in s 104.4(1)(d)(i) of the Code. Both the AFP and ASIO expressly eschewed any suggestion that there was a significant risk of EB himself committing a terrorist act, either in Australia or abroad. Indeed, it appeared to be accepted that EB’s conviction and time in custody had had a salutary effect on him, and that he had taken positive steps towards rehabilitation. The eminently sensible and reasonable approach that he has taken to this proceeding perhaps confirms that assessment. He and his advisers should be commended for that approach.

26    Orders will be made largely in terms of those set out in the short minutes of order that Mr McCartney provided to the Court at the hearing.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Associate:    

Dated:    22 February 2019