FEDERAL COURT OF AUSTRALIA
McCartney v Abdirahman-Khalif [2019] FCA 2218
Applicant | ||
AND: | Respondent | |
CHARLESWORTH J:
1 On 22 November 2019 I made an interim control order pursuant to s 104 of the Criminal Code Act 1995 (Cth) against the respondent. The order was interlocutory in nature. An interim control order may ordinarily be made on an ex parte application. In the circumstance of this case, however, the respondent was served with the application and afforded an opportunity to be heard. I gave oral reasons for making the interim control order on the date that the order was made. The parties have since been provided with an informal written record of the reasons derived from the transcript of the oral reasons.
2 The applicant has elected to confirm the interim control order in accordance with the provisions of Div 104 of the Code.
3 At the time that the order was made it was envisaged that the confirmation hearing required to be conducted by the Code might follow in a short time frame, having regard to the need to afford the respondent procedural fairness in respect of that hearing. However, the commencement of the confirmation hearing has been adjourned more than once on the application of the respondent. As a consequence, the interim control order remains in force.
4 The applicant has requested that the Court publish written reasons for the interim control order made on 22 November 2019 and I now do so. The reasons commencing at [10] below are in substantially the same terms as the informal written record provided to the parties earlier. In the circumstances I have described, I do not consider it appropriate to make any substantive addition or alteration to them. Any amendments that have been made should be understood as intended to improve expression, without affecting the meaning of what was pronounced orally.
5 As a consequence, the reasons assume some knowledge on the part of the reader as to the content of the evidence before the Court. I do not propose to remedy that, given that it remains open to me to adopt a different view of similar evidence at the confirmation stage.
6 In giving oral reasons I referred to amended short minutes of order setting out the relief sought by the applicant. The controls sought by the applicant formed Annexure A to the minutes. The controls sought by the applicant were expressed as follows (without alterations):
1. Control 1
1.1. You are required to remain at premises:
a. nominated by you within 24 hours from the time that this Interim Control Order comes into force; and
b. approved in writing by the JCTT Coordinator
(the specified premises),
between the hours of 10:00 pm and 6:00 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.
1.2. You must present and identify yourself at the specified premises during the curfew period upon request by a police officer.
2. Control 2
2.1. You are required to report to a police officer every Wednesday, between 7:00 am and 7:00 pm (the reporting period), at Port Adelaide Police Station, 244 St Vincent Street Port Adelaide SA.
3. Control 3
3.1. You are prohibited from being at any of the following areas:
a. within the exclusion zone shaded in yellow set out in Annexures 1 and 2 at Adelaide Airport; and
b. within the exclusion zone shaded in yellow set out in Annexures 3 and 4 at Port Adelaide; and
c. within 1 km of any Australian airport (beside Adelaide Airport) which has an international point of departure, or from which a person can board or charter a flight for an international destination;
d. within 1 km of any Australian port (beside Port Adelaide) which has an international point of departure, or from which a person can board or charter a marine vessel for an international destination;
e. inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there;
f. at the residence of any person with whom, by reason of Control 11, you are prohibited from communicating or associating;
g. any place in Australia outside the state of South Australia.
4. Control 4
4.1. You are prohibited from leaving Australia for any period of time while this Interim Control Order is in force.
5. Control 5
5.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing or storing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess or store documents (including documents in electronic form) or electronic media, 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.
unless that material is:
d. published by a ‘constituent body’ of the Australian Press Council;
e. broadcast on Australian free to air television;
f. broadcast on Australian pay television;
g. shown in a commercial movie cinema; or
h. broadcast on one of the following streaming services: Netflix; STAN; ABC iView; or SBS on demand.
6. Control 6
6.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing or storing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess or store documents (including documents in electronic form) or electronic media, 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 including the al-Hayat Media Centre; or
g. 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:
h. published by a ‘constituent body’ of the Australian Press Council;
i. broadcast on Australian free to air television;
j. broadcast on Australian pay television;
k. shown in a commercial movie cinema; or
l. broadcast on one of the following streaming services: Netflix; STAN; ABC iView; or SBS on demand.
7. Control 7
7.1. You are prohibited from the following specified activities (including in respect of your work occupation), namely: producing or distributing documents (including documents in electronic form) or electronic media relating to:
a. explosives, explosive devices, initiation systems or firing devices;
b. firearms, ammunition or knives;
c. anti-surveillance or counter surveillance;
d. executions;
e. beheading;
f. suicide attacks;
g. bombings;
h. terrorist attacks;
i. propaganda and promotional material for a terrorist organisation including the al-Hayat Media Centre;
j. activities of, or associated with, any organisation that is specified as a ‘terrorist organisation’ for the purposes of s 102.1 of the Schedule to the Criminal Code Act 1995 (Cth).
8. Control 8
8.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: purchasing, renting or driving any vehicle which exceeds a gross vehicle mass of 4.5 tonne.
9. Control 9
9.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: undertaking paid or unpaid employment of which you have not first notified the JCTT Coordinator in accordance with Control 9.2.
9.2. In your notification to the JCTT Coordinator, you must:
a. submit a written notification to the JCTT Coordinator which notifies the proposed employment, including details of the employer (including their name and place of business) and the nature of the work that will be undertaken; and
b. provide any information requested by or on behalf of the JCTT Coordinator in relation to the proposed employment (including, but not limited to, information regarding persons employed by or associated with the proposed employer and information about the nature of the business and the work you would be undertaking).
10. Control 10
10.1. You are prohibited from possessing or using, or causing any person to act on your behalf to possess or use, any of these specified articles or substances, namely:
a. firearms or ammunition;
b. a ‘prohibited weapon’ within the meaning of s 6 of the Summary Offences Regulation 2016 (SA);
c. any quantity of petrol exceeding 4 litres;
d. any quantity of any chemical which is not consistent with reasonable domestic use.
11. Control 11
11.1. You are prohibited from communicating or associating with:
a. any person incarcerated in any correctional facility;
b. any person located in Turkey, Iraq or Syria;
c. any of the following specified individuals:
i. Daniel John CLAVELL (Date of birth: 07/07/1987);
ii. Nathan John CLAVELL (Date of birth: 27/04/1998);
iii. Samia HUSSAIN (Date of birth: 12/02/1998);
iv. Joel Edward James CLAVELL (Date of birth: 20/02/2000);
v. Joshua John CLAVELL (Date of Birth: 25/01/1989); and
12. Control 12
12.1. You are prohibited from accessing or using, any mobile telephone device other than one mobile telephone device (the permitted mobile phone), and your use of the permitted mobile phone is subject to the following conditions:
a. before using the permitted mobile phone, you must present it to the JCTT Coordinator (or a police officer specified in writing by the JCTT Coordinator) for inspection;
b. before using the permitted mobile phone, you must advise the JCTT Coordinator, in writing, of the following information: the International Mobile Equipment Identity number for the permitted mobile phone, the Integrated Circuit Card Identifier for the SIM card you will use with the permitted mobile phone, the telecommunication service provider which you will use with the permitted mobile phone, and the phone number to which the permitted mobile phone will be connected;
c. once you have advised the JCTT Coordinator of the information required by paragraph 12.1.b above, you must not change, remove, modify or disconnect or cause any other person to change, remove, modify or disconnect on your behalf (including any employee or person acting on behalf of a telecommunications service provider) the SIM card, telecommunication service provider or phone number connected to the permitted mobile phone.
12.2. You are prohibited from causing or permitting another person to use or access the permitted mobile phone.
12.3. You are prohibited from causing or permitting another person to use or access any mobile telephone device on your behalf.
13. Control 13
13.1. You are prohibited from accessing or using any fixed or landline telephone service other than one service that has been approved in writing by the JCTT Coordinator for you to access or use.
13.2. To seek approval, you must:
a. submit a written request to the JCTT Coordinator which nominates the fixed or landline telephone service; and
b. provide any other information requested by or on behalf of the JCTT Coordinator for the purpose of identifying the nominated fixed or landline telephone service.
13.3. You are prohibited from causing another person to use or access any fixed or landline telephone service on your behalf.
14. Control 14
14.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, 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, the date, time and phone number called; and
b. you explain the nature of the emergency which required you to access or use that public telephone.
15. Control 15
15.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any satellite telephone service.
16. Control 16
16.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any of the following websites, applications or computer programs (collectively, platforms), as the case may be:
a. FaceTime
b. WhatsApp
c. Viber
d. Telegram
e. Skype
f. Facebook Messenger
g. Instagram
h. Snapchat
i. KIK
j. iCall
k. WeTalk
l. Lync2013
m. Nimbuzz Messenger
n. Whistle Phone
o. Talkatone
p. Discord
q. Google Duo
r. MagicApp
s. Signal Private Messenger
t. Zoiper IAX SIP VOIP Softphone
u. Beejive
v. Fring
w. JaJah
x. Line2
y. Talkatone
z. Truphone
aa. Twitter
bb. Yahoo
cc. ICQ
dd. Google Talk
ee. MSN Messenger
ff. AIM
gg. Yahoo Messenger
hh. Packet8
ii. Google Hangouts.
16.2. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any Voice Over Internet Protocol (VOIP) service.
16.3. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any internet based messaging service.
16.4. However, Controls 16.3 and 16.4 do not prohibit access to or the use of:
a. Facebook; or
b. 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.
17. Control 17
17.1. You are prohibited from accessing or using any internet service other than the one service that has been approved in writing by the JCTT Coordinator for you to access or use (the permitted internet service).
17.2. To seek approval:
a. you must submit a written request to the JCTT Coordinator which:
(i) nominates the internet service provider account; and
(ii) nominates the devices you will connect to the internet service (including but not limited to computers and televisions);
b. provide any other information requested by, or on behalf of, the JCTT Coordinator, in relation to, or for the purpose of identifying, the nominated account and devices.
17.3. You are prohibited from causing or permitting another person to access or use the permitted internet service.
17.4. You are prohibited from causing any other person to access or use on your behalf any internet service.
18. Control 18
18.1. You are prohibited from accessing or using any electronic mail (email) account other than one account that has been approved in writing by the JCTT Coordinator for you to access or use (the permitted email account).
18.2. To seek approval:
a. you must submit a written request to the JCTT Coordinator which nominates the email account; and
b. provide any other information requested by, or on behalf of, the JCTT Coordinator in relation to, or for the purpose of identifying, the nominated account which you will be accessing or using.
18.3. You are prohibited from causing or permitting another person to use or access the permitted email account.
18.4. You are prohibited from causing any other person to access or use on your behalf any email account.
19. Control 19
19.1. You are prohibited from accessing or using any computer other than one computer that has been approved in writing by the JCTT Coordinator for you to access or use (the permitted computer).
19.2. To request approval you must:
a. submit a written request to the JCTT Coordinator which nominates the computer; and
b. provide any information requested by or on behalf of the JCTT Coordinator in relation to, or for the purpose of identifying and accessing, the nominated computer.
19.3 If the approval is granted, you must provide the JCTT Coordinator, or a police officer acting under the JCTT Coordinator’s direction, the password for the permitted computer if you are requested to do so by the JCTT Coordinator or the police officer.
20. Control 20
20.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any tablet device, including but not limited to an iPad or a Samsung Galaxy Tab.
21. Control 21
21.1. 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.
21.2. If you agree to participate in such counselling or education you must advise the JCTT Coordinator in writing that you have commenced the counselling or education and provide the JCTT Coordinator the name and qualifications of the professional you have engaged.
22. Exemptions
22.1. You may request the JCTT approve an exemption to the requirements or prohibitions (as the case may be) specified in Controls 1.1, 2.1, 3.1.g and 11.1.b.
22.2. To request an exemption, you must:
a. submit a written request to the JCTT Coordinator 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 JCTT Coordinator for the purposes of determining whether to approve the exemption.
22.3. The JCTT Coordinator may grant an exemption subject to conditions specified in writing.
22.4. You must comply with all of the conditions specified in writing by the JCTT Coordinator. 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.
22.5. A request for an exemption must be made before the material time and date.
22.6. If the JCTT Coordinator has not approved an exemption by the material time and date, the request is deemed to have been refused.
23. Interpretation
23.1. In this Interim Control Order:
a. Material time and date means:
i. in relation to a request for an exemption to the requirement in Control 1.1. the commencement of the curfew period that is the subject of the request (and, if more than one curfew period is the subject of the request, the first of those curfew periods);
ii. in relation to a request for an exemption to the requirement in Control 2.1. before the conclusion of the reporting period that is the subject of the request (and, if more than one reporting period is the subject of the request, the first of those reporting periods);
iii. in relation to a request for an exemption to the requirement in Control 3.1.g. the time and date at which you wish to depart South Australia; and
iv. in relation to a request for an exemption to the requirement in Control 11.1.b. the time and date at which you wish to communicate with a person located in Turkey, Iraq or Syria.
b. JCTT Coordinator means a member of the Australian Federal Police performing the duties of JCTT Coordinator.
c. Password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device, account, application, service, software or hardware.
d. Police officer means a ‘member’ or ‘special member’ of the Australian Federal Police, as defined by the Australian Federal Police Act 1979 (Cth), or a ‘police officer’ within the meaning of the Police Act 1998 (SA).
7 It is not necessary to reproduce the maps referred to in Control 3.1.a and 3.1.b.
8 The order made on 22 November 2019 had the effect of imposing all of these controls, with the exception of Control 9.
9 I also referred to written submissions filed on behalf of the applicant. As will be seen, I adopted that part of the submissions concerning the construction of the provision conditioning the exercise of the power to make an interim control order. For completeness, the submissions I adopted at the interim stage are now extracted below (with citations added):
A protective purpose
32. While a control order may result in some deprivation of liberty, its purpose is not punitive. Proceedings under Division 104 are civil, not criminal, in nature. It is not sought to punish the Respondent but to protect the community.
33. Donald FM described the purpose of control orders in Jabbour v Hicks [2008] FMCA 178 as follows:
[8] ... it is important to note that the function of this Court is not to determine whether or not the Respondent should be punished or further punished for any of his activities. Rather, the function of this Court is to consider whether a control order should be made placing restrictions upon the activities of [the subject] and, if so, what those restrictions should be. In making those decisions, the applicable legislation provides clear guidance as to the matters to be taken into account by the Court. Punishment or further punishment is not a factor to which this Court has any regard. The matters are to be considered on what could be described as a prospective basis – what is to occur in the future so that the public is protected from a terrorist act.
34. In McCartney v EB (2019) 263 FCR 170 Wigney J noted (at [18]) that the protective purpose of the provisions in Division 104 supports a more beneficial (to the Applicant) and less restrictive construction of its provisions than would be the case if it contained penal provisions.
Assessing risk
35. In Thomas v Mowbray (2007) 233 CLR 307, Gleeson CJ observed (at [9]) that ‘[t]he level of risk of the occurrence of a terrorist act, and the level of danger to the public from an apprehended terrorist act, will vary according to international or local circumstances.’ Similarly, Gummow and Grennan JJ observed (at [92]) that:
The federal judges exercising the jurisdiction conferred by the interim control order provisions will bring to their consideration of whether ‘making the order would substantially assist in preventing a terrorist act’ (s 104.4(1)(c)(i)) and of the particular form of an order, both matters of common knowledge, some of which we have referred to above [September 11 and other terrorist activities], and the facts and circumstances disclosed in the evidence on the particular application for an order.
‘Substantially assist’
36. This application is brought, in part, on the basis that the Respondent is a potential perpetrator of a terrorist act. But even if the Court is not persuaded of this, the ICO sought may still ‘substantially assist’ in preventing a terrorist act. As Gummow and Crennan JJ noted in Thomas v Mowbray (at [97]) the making of a control order against someone other than the prospective perpetrator of a terrorist act may nevertheless be of substantial assistance in preventing a terrorist act. It may also ‘substantially assist’ in preventing provision of support for, or the facilitation of, such an act.
37. The case law that has considered the meaning of ‘substantial’ or ‘substantially’ suggests that the phrase has no fixed meaning and does not suggest a quantitative or proportional assessment (see for example Terry’s Motors Ltd v Rinder [1948] SASR 167; In re Net Books Agreement 157 [1962] 1 WLR 1347). It has, however, in different contexts, been held to mean ‘not trivial or minimal’ (R v Lloyd [1967] 1 QB 175) or ‘more than merely insubstantial or insignificant’ (Secretary, Dept of Social Security v Wetter (1993) 40 FCR 22 at 29-30). In light of the protective purpose of Division 104 and the matters referred to in paragraphs [38]-[39] below, the Applicant submits that such a meaning is appropriate in construing s 104(1)(c)(i).
38. The Applicant submits that the Court does not need to find on the balance of probabilities that a terrorist act would otherwise occur before it can grant an ICO for the following reasons:
38.1. Had this been the intention it could readily have been stated.
38.2. Such a construction would rob the provisions of much of their intended protective effect.
38.3. The sorts of obligations, prohibitions and restrictions that can be contained in a control order are, by their very nature, not necessarily going to be decisive in preventing a terrorist act.
38.4. Such an interpretation of s 104.4(1)(c)(i) is consistent with how the notion of protecting the public should be interpreted in s 104.4(1)(d).
38.5. The provisions dealing with control orders can be contrasted with those dealing with preventative detention which are aimed to prevent an imminent terrorist act occurring (see s 105.1). Section 105.5(4) of the Criminal Code requires there to be reasonable grounds to suspect that the subject will engage in a terrorist act; or possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or has done an act in preparation for, or planning, a terrorist act before preventative detention can occur. If Parliament intended s 104.4(1)(c)(i) to be interpreted in a way that required a court to find that a terrorist act would otherwise occur before it could make a control order then this would not sit comfortably with the preventative detention regime which seems to be designed to deal with such a situation.
39. Certain steps can substantially assist in preventing something even though one cannot quantify the risks of it occurring with or without protective action. To pick but one illustration, ensuring aircraft maintenance workers were not intoxicated whilst on duty could properly be said to substantially assist in preventing the loss or passengers lives even though the chance of this occurring, with or without such action, would be difficult to quantify.
‘Reasonably necessary’ and ‘reasonably appropriate and adapted’
40. In Thomas v Mowbray, Gleeson CJ explained (at [19]) the judicial function as follows:
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.
41. Gummow and Grennan JJ described (at [99]) the judicial task in deciding which controls to impose as follows:
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)).
42. Gummow and Grennan JJ went on to explain (at [103]) that what is required by the criteria of reasonable necessity and ‘reasonably appropriate and adapted’ is a ‘sufficient connection between the desired end and the means proposed for its attainment’. In Jabbour v Hicks, for example, Donald FM (at [39]) confirmed controls which made it ‘more difficult’ for the person to travel for terrorist activities and ‘more eas[y]’ to locate him if he did so.
Standard of proof and interlocutory proceedings
43. Subsection 104.4(1), which sets out the substantive matters of which the Court must be satisfied before it can make an ICO, adopts the ‘balance of probabilities’ as the applicable standard of proof.
44. Where circumstantial evidence is relied upon, it is sufficient that the circumstances raise a more probable inference in favour of what is alleged. It is not necessary to exclude all reasonable hypotheses to the contrary, even in respect of grave allegations of criminal conduct. The Applicant accepts that the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336 are engaged in relation to the more serious allegations he makes against the Respondent.
45. Proceedings in relation to a request for an ICO are interlocutory for all purposes, including for the purposes of s 75 of the Evidence Act 1995: s 104.28A(1).
RECORD OF ORAL REASONS
10 Before the Court is a request for an interim control order to be made under s 104.3 of the Code. The person requesting the order is a member of the Australian Federal Police (AFP) holding the rank of Assistant Commissioner. He is a senior AFP member for the purposes of the Code. He makes the request having first obtained the consent of the Hon Peter Dutton MP. Mr Dutton is the Minister as defined in the Code.
11 The power to make an interim control order is conferred by s 104.4 of the Code. The power is discretionary. It is conditioned by the four requirements set out in s 104.4(1)(a) to (d). Subsections (a) and (b) are procedural. I am satisfied that those requirements are fulfilled. The requirements in s 104.4(1)(c)(i) and (vi) and s 104.4(1)(d) are relevantly as follows:
(c) the court is satisfied on the balance of probabilities:
(i) that making the order would substantially assist in preventing a terrorist attack; or
…
(vi) that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act.
…
(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 purposes 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.
12 For the purposes of these paragraphs, reference to a terrorist attack includes a reference to a terrorist act that has not occurred, a specific terrorist act and more than one terrorist act: Code, s 104.2(6).
13 Section 104.4(2) sets out the considerations to be taken into account in determining whether the criterion in s 104.4(1)(d) is satisfied.
14 The Court need not include in the order an obligation, prohibition or restriction that was sought by the senior AFP member if the Court is not satisfied, as mentioned in s 104.4(1)(d), in respect of that obligation, prohibition or restriction.
15 The phrase “terrorist act” is defined in s 100.1(1) of the Code to mean an action, or a threat of an action, where the action falls within subs (2) and does not fall within subs (3). I have had regard to the elements of the definition.
16 I have had particular regard to s 100.1(3). It provides:
terrorist act means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within subsection (3); and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public
17 As can be seen, whether an act of advocacy, protest, dissent or industrial action constitutes terrorism turns upon the state of mind accompanying those activities.
18 For the purposes of this application, and subject to what is said below, I accept the applicant’s submissions as to the proper construction of the provisions contained in Div 104 of the Code and particularly what is meant by the phrases “reasonably necessary”, “reasonably appropriate and adapted” and “substantially assist”, as those phrases appear in s 104.4(1)(c) and (d).
19 There is some dispute as to how the Court is to undertake its evaluative task, particularly in relation to the specificity with which, and the judicial method by which, the Court should assess and articulate the risk to which the proposed orders are directed. I will return to that aspect of the dispute in due course.
20 The background to this application is that three weeks ago the respondent was released into the community having been imprisoned for a period of two and a half years following her arrest on a terrorism-related charge. The significance of the respondent’s involvement with the criminal justice system was the focus of submissions before me.
21 It is necessary to summarise the criminal proceedings by way of background.
22 The respondent was arrested in late May 2017 after an unsuccessful attempt to travel to Turkey and from there to Syria to lend support to the cause of Islamic State (IS), a terrorist organisation within the meaning of the Code.
23 On 17 September 2018, the respondent was convicted on information charging that, between 14 July 2016 and 23 May 2017, she was intentionally a member of a terrorist organisation, namely IS, in contravention of s 102.2(1) of the Code. In addressing the jury, the prosecutor had said:
Remember, also, I think I said at the outset of the trial and opening the case for the prosecution that it is not suggested by the Crown that the defendant has been involved in any way at all in any one of the violent things that you have seen during the course of the trial in the evidence. Further, it is not the allegation of the Crown that the defendant was planning or intending to commit any act of violence.
24 On 31 October 2019, the Court of Criminal Appeal ordered that the guilty verdict be set aside and that a verdict of acquittal be entered. The respondent was released from prison on that day. At trial, and on appeal, the objective actions of the respondent were, in large part, not in issue and the evidence adduced on the prosecution case concerning the respondent’s subjective words and conduct was largely uncontradicted. Whether the respondent was guilty of the offence turned on the question of whether the evidence was sufficient to prove beyond reasonable doubt that the respondent’s actions fulfilled the essential elements of the offence, particularly whether they constituted an attempt to obtain “membership” of IS within the meaning of the Code.
25 The word “membership”, as defined, formed a part of an essential element of the offence. The jury can be taken to have found that essential element to have been proved beyond reasonable doubt. The Court of Criminal Appeal set aside that verdict: Abdirahman-Khalif v The Queen [2019] SASCFC 133 (Kourakis CJ, Kelly and Parker JJ).
26 The relevant ground of appeal was that the verdict was not supported by the evidence because there was no evidence of the organisational structure of IS explaining the nature of its membership or how a person might become a formal, or informal, member of it and, therefore, no evidence that the appellant had taken a step to become a member. It was that appeal ground that that was upheld by the majority (Kourakis CJ and Parker J, Kelly J dissenting).
27 Kourakis CJ said at [8]:
The totality of the evidence which I set out in greater detail below, and which was not contradicted at trial, was capable of supporting an inference that the appellant was a supporter of Islamic State, its extremist ideology and its terrorist activities. It also supported the inference that she intended to travel to Turkey to make contact with members or supporters of Islamic State in Turkey, with the intention of travelling into the areas of Syria, Iraq and Turkey controlled by it for the purposes of either providing medical assistance to fighters and others or to marry an Islamic State fighter.
28 However, there was, his Honour said (at [10]):
…no evidence against which to evaluate any connection between the proved conduct of the appellant, her communications, pledge of allegiance, singing and attempt to travel to Turkey, with formal, or informal membership of Islamic State.
29 Parker J, to similar effect, said (at [271]):
… While I have no doubt whatsoever that the evidence was more than sufficient to permit the jury to conclude that the appellant firmly supported IS and was strongly committed to its cause, that was not the subject of the charge she faced. …
30 I now turn to consider the nature of these proceedings. An application for an interim control order is, for all purposes, to be taken to be an interlocutory proceeding. That is provided for by s 104.28A(1) of the Code. Accordingly, although the Evidence Act 1995 (Cth) applies, the hearsay rule does not: Evidence Act, s 75. Construed as a whole, s 104 of the Code contemplates that an application for an interim control order may be made ex parte and in private. Accordingly, the Court is authorised to hear and determine the application in closed court and without affording procedural fairness to the person against whom such an order is sought.
31 There was no obligation on the applicant to serve the application on the respondent to this proceeding. The applicant nonetheless did so and joined the respondent as a party. A solicitor for the respondent attended at the first case management hearing and confirmed that the respondent sought to be heard on it. Neither party suggested that the application should be heard and determined other than in open court.
32 At the commencement of the substantive hearing, the respondent was represented by counsel, Ms Shaw SC. Ms Shaw properly acknowledged that whether or not the respondent should be heard on the application was a matter within the Court’s discretion. I granted counsel audience on the interim application. Adopting that course necessarily gives rise to a possibility that I may, in the course of expressing these reasons, reject submissions advanced on behalf of the respondent concerning the same or similar factual or legal issues that may, depending on the outcome of this application, arise for consideration or reconsideration in the context of a confirmation hearing, should there be one. However, there was no suggestion by counsel for the respondent that hearing and determining the merits of her submissions at this stage would give rise to an apprehension of bias affecting any subsequent confirmation hearing. I have proceeded to hear the submissions and am proceeding to judgment on that basis.
33 I now turn to the evidence. The application is supported by the affidavit of senior AFP member, Mr Ian McCartney. In accordance with the Code, it annexes two statements of facts, the first as to why the orders should be made and the second as to why the orders should not be made. The facts are sworn on the basis of information and belief. In large part, the affidavit evidence constitutes hearsay for the purposes of the Evidence Act, although the statements of fact also annex evidentiary materials that would not otherwise offend the hearsay rule in their own right.
34 Whilst for the purposes of this interlocutory proceeding the hearsay evidence is not inadmissible, characterisation of some of the evidence as hearsay may affect its reliability and, hence, its weight. I have assessed the evidence on that basis.
35 Determination of this application requires facts to be found to the civil standard of proof. In determining whether the Court is satisfied that the applicant’s case has been proved on the balance of probabilities, the Court must take into account, among other things, the nature of the subject matter of the proceeding and the gravity of the matters alleged: Evidence Act, s 140. In applying that standard, I have had particular regard to the nature of the controls sought to be imposed on the respondent and the extent to which they represent an incursion on her civil liberties. Some of the controls would prohibit the respondent from doing acts that she would, in any event, be prohibited from doing under the general law, but others are not. I have also had regard to the fact that the orders sought at this stage of the process are in the nature of interim orders. Something should be said about the consequence of that.
36 The orders will not remain in place unless the senior AFP member makes an election to confirm them in accordance with s 104.12A. In that event, there is to be a confirmation hearing in accordance with s 104.14. At such a hearing, the Court may revoke the order or confirm the order with or without variation. Importantly, when determining whether an interim order is to be confirmed, the Court is to proceed only on the evidence adduced for the purposes of the confirmation hearing. To the extent that the evidence presently before me is assessed for the purposes of making orders having a significant impact on the respondent, I am proceeding on the basis that that impact will persist, on the basis of that evidence, only until the confirmation hearing, should there be one.
37 At that hearing, the respondent would be entitled to be heard, to cross-examine witnesses and to adduce evidence of her own. Whether the order should be confirmed and so continue in force for a total period of 12 months must be determined in a different evidentiary context.
38 The evidentiary materials before me include judgments, transcripts and other materials from proceedings in the Supreme Court of South Australia, including sentencing remarks made by the trial judge in April 2019. The sentencing remarks contain findings of fact and the reasons for judgment of the Court of Criminal Appeal contain conclusions about the capacity of the evidence adduced at the trial to establish critical factual propositions to the criminal standard of proof.
39 The applicant correctly acknowledges that findings of fact by justices of the Supreme Court do not have evidentiary status in these proceedings, but rather form a part of the background against which this application is made. It was nonetheless submitted that I should make equivalent factual findings on the evidence before me, and, in particular, that I should characterise the evidence and draw primary inferences to the same effect as the majority in the Court of Criminal Appeal.
40 Also before the Court is a statement of agreed facts signed by the parties for the purposes of s 191 of the Evidence Act. Those objective facts form a part of my findings and it will be necessary in due course to determine what inferences can, or cannot, be drawn by reference to them.
41 To be clear, I will not make any factual finding concerning the respondent’s past conduct by adopting any facts the jury may or may not have found at trial, nor by adopting any fact made by the sentencing judge, nor by adopting any facts that the Court of Criminal Appeal might have found capable of being established beyond reasonable doubt in the criminal proceedings. Forensically speaking, I consider the judgments to be otherwise of limited assistance in the current statutory context and I will rely on the evidence that is contained in the statement of agreed facts, the statement of facts sworn by Mr McCartney both as to why the orders should and should not be made, and, in particular, the exhibits thereto.
42 The affidavit of Mr McCartney alleges primary facts as well as findings that might be made by inference. In addition, the affidavit urges the Court to make certain evaluative judgments on the basis of those facts. For the most part, the primary facts concern the objective conduct of the respondent, that is, her words, her acts and omissions. Counsel for the respondent did not seek to contradict the primary facts at large, but did take issue with the inferences that might be drawn from them, both as to the subjective intentions, knowledge and motivations of the respondent, and as to the risk that she presents to the community, and as to the proper application of the statutory criteria to her and her circumstances.
43 I find established to the requisite standard those primary facts set out in the statement of facts sworn by Mr McCartney as to what the respondent has said and done in the past, with two qualifications. The first qualification is that I do not consider it necessary to make any finding to the effect that the respondent obtained, or attempted to obtain, “membership” of IS. The second qualification is that it is unnecessary to draw any inferences about what the jury did or did not find to have been proven at the respondent’s trial.
44 The state of mind accompanying the respondent’s past conduct, including her beliefs, intentions and motivations is, too, a question of fact to be inferred from all of the circumstances.
45 In the result, I have determined that an interim control order should be made and that the controls should be in the terms set out in the amended short minutes of order, save that I do not consider it appropriate in my discretion to make an order in terms of proposed control 9.
46 The proposed control 9 would prohibit the respondent from carrying out specified activities, including in respect of her work or occupation, namely paid or unpaid employment, without having first notified the “JCTT coordinator”. The proposed control goes on to suggest how that notification should be given. I will explain why I am not inclined to impose a control in those terms in due course.
47 I am required by the Code to include with the order a summary of the grounds on which the order is made. It is presently unclear to me the level of detail that is required in fulfilling that obligation. It might be sufficient simply to identify the statutory provisions that I have found are invoked and the criteria that I have found to be fulfilled. However, I have regard to the fact that, in usual circumstances, an interim control order is made ex parte. In the ordinary course the person subject to the order would not be aware of the application until the order is sought and so it is appropriate to proceed on the basis that some detail of facts, albeit in summary form, should be set out in the order itself.
48 I propose to include a summary of the grounds in the order to the following effect:
(1) Islamic State (IS) has:
(a) since its inception, directly, and indirectly, engaged in preparing, planning, assisting in or fostering the doing of various terrorist acts globally; and
(b) as one of its main goals to engage in terrorist acts (violent jihad) throughout the world, including killing westerners; and
(c) by its leaders and propaganda materials, exhorts its followers to take action to achieve those goals.
(2) Ms Abdirahman-Khalif:
(a) attempted to travel on 14 July 2016 in order to marry an IS fighter in Turkey or Syria or thereabouts and to use her nursing training to provide medical assistance to IS fighters there;
(b) between at least November 2014 and May 2017, possessed and accessed an extensive amount of material promoting IS and violent jihad including extremist, violent videos depicting content such as beheadings, stonings and shootings, including such acts being committed by children;
(c) between at least May and July 2016, communicated with supporters of IS;
(d) pledged an oath of allegiance, Bay-ah, to the then leader of IS, Abū Bakr al-Baghdadi, on 2 October 2016;
(e) between at least May 2016 and March 2017, expressed support for IS and violent jihad, including by repeated recitation of IS and extremist Nasheeds;
(f) recorded a video of herself whilst a Nasheed referring to jihad was playing;
(g) self-identified as a mujahideen, a term used by those, at the very least, who support IS ideology;
(h) used a pose adopted by IS of pointing skyward with her index finger and recorded a video of herself doing so;
(i) was a member of a chat group named Bahki’ah Sisters, suggesting that she was a pro-IS woman and the group Naughty Sisters, both of which included herself and members of a group known as the Mombasa Group, that group being responsible for a terrorist attack in Kenya; and
(j) had advanced notice of the terrorist attack in Kenya by the Mombasa Group and, having counselled a member of the group to be patient and to wait until October or December to conduct their attack. Her conduct after this event indicated her support for the attack. Further, she continued accessing IS material after the event and made her pledge of allegiance after the event. The communications with one of the members of the Mombasa Group evidence a relationship in the nature of a friendship.
(3) Ms Abdirahman-Khalif’s attempt to travel to IS territory demonstrates her commitment to and support for IS’s ideology, intentions and activities. She did not tell her family about her intended travel. She replaced her iPhone with an android device and she brought very limited hand luggage, all of which was consistent with advice contained on her electronic devices regarding how to avoid detection and successfully travel to IS territory. That conduct was detected in July 2016 upon her attempted travel to IS territory.
(4) Upon being detected, her contact with the Australian Border Force and the AFP made plain the seriousness with which Australian law regards any attempt to join an organisation such as IS.
(5) Ms Abdirahman-Khalif’s passport was cancelled on 19 July 2016. Notwithstanding these interactions with the authorities, she did not move away from the IS-inspired ideology that had influenced her behaviour. Rather, she continued to engage with members of the Mombasa Group in advance of their terrorist attack and made efforts to conceal her subsequent conduct, including by uninstalling and reinstalling “Telegram”, deleting communications and by advising the Mombasa Group, “Don’t talk”.
(6) Ms Abdirahman-Khalif made the Bay-ah in October 2016 and identified as a mujahideen in February 2017 and was untruthful in a police interview in February 2017.
(7) Ms Abdirahman-Khalif is susceptible to the influence of extremist propaganda and violent material. Extensive extremist material and IS propaganda, including images, videos and IS publications were located on her mobile telephones. Some of that material was of the most extreme nature, including beheadings, stonings and shootings. It also included material calling for a caliphate and for Sharia law in the United Kingdom.
(8) During a recent term of imprisonment, Ms Abdirahman-Khalif has communicated with a number of persons, both in Australia and overseas, who are a security concern. The persons of security concern have made unsolicited contact with her, including for the purposes of providing her with the opportunity to marry. The extent to which Ms Abdirahman-Khalif was aware of the nature of the security concerns at the time of the correspondence is presently unclear, although there is some evidence before me that she was not.
(9) Ms Abdirahman-Khalif has not completed any significant rehabilitation programs specifically directed to her deradicalization, including because she was not provided with any meaningful opportunity to do so when in prison.
(10) Ms Abdirahman-Khalif’s past conduct has occurred in circumstances in which she has very poor psychological resistance and she continues to have poor psychological resistance. In all of the circumstances, it is more probable than not that Ms Abdirahman-Khalif will continue to:
(a) support the ideology, intentions and activities of IS, including terrorist attacks being carried out by its members; and
(b) seek out and engage with IS extremists, whether members or otherwise, including for the purposes of pursuing her intention to marry an IS fighter or terrorist.
(11) There is, I find, a high likelihood that Ms Abdirahman-Khalif will act on her intention to marry an IS extremist in the very short term or that she will otherwise form relationships in the very short term in which she is highly susceptible to the influence of others. In the context of such relationships, there is a real risk that Ms Abdirahman-Khalif will do any act in support of the IS cause as may be requested or demanded of her by others, including acts of terrorism or conduct supporting or facilitating acts of terrorism, including in Australia. It is more probable than not that the making of the interim control order would substantially assist in preventing a terrorist attack or in preventing the provision of support for or the facilitation of a terrorist act.
49 By using the word “join” at [48(4)] above, I do not express any finding as to whether or not that was the respondent’s intention.
50 I express my dismay that Ms Abdirahman-Khalif did not have any meaningful opportunity to engage in significant rehabilitation programs specifically directed to her deradicalization whilst in prison as identified at [48a(9)] above.
51 The summary of grounds will go on to include a statement as to the proportionality of the orders.
52 I now turn to deal with some of the matters raised on behalf of the respondent in the course of submissions advanced on her behalf by her legal representatives.
53 It was suggested that the Court should draw the inference that the respondent discouraged the Mombasa attack. I have rejected that submission. All that the respondent did was to suggest that the attack should be delayed. The evidence, particularly the evidence of the telephone call in question, does not suggest that the respondent expressed any concern or even any disquiet about the fact of the attack. Indeed, it seems that she was closely enough connected with those who committed the attack to perceive herself, at least, to have some influence in dictating or at least influencing its timing.
54 I wish to elaborate on that portion of the evidence that deals with what I will refer to as “the Clavell correspondence”. The evidence is to the effect that two members of the Clavell family were shot by police on 12 June 2019 in a confrontation in which each of them were armed, one with a large knife and the other with a hatchet. A trial in relation to that confrontation is pending. It is sufficient to say that the persons involved in that confrontation are of significant security concern, as perceived by the AFP, including for reasons relating to extreme IS related ideology.
55 Whilst in prison, the respondent received correspondence from one Sumia Hussein. Ms Hussein is the wife of Nathan Clavell. She is the sister-in-law of a person who is presently imprisoned in the United Kingdom after pleading guilty to encouraging terrorism on social media. The correspondence suggests that the respondent was made aware in July of the shooting incident involving two of the Clavell brothers and that she received correspondence, in late July proposing that she marry one of the members of the Clavell family.
56 It is an agreed fact that in late August 2019 the respondent spoke to two officers at the South Australia Department of Correctional Services and at that time the officers informed the respondent of the Clavell family’s history and associations.
57 It is unclear to me whether that is the first time that the respondent first learned of the Clavell family’s history and associations. She had received correspondence concerning the shooting in the previous July and it is in that context that I view with some caution the letter that the respondent sent to the Clavells in which she stated that their letters and money orders would be returned. The letter is significant, more for what it does not say. Whilst I accept that, by that letter, the respondent to a degree was ceasing communication, the reason for doing so and the time period over which she intended to cease communications is left entirely unclear. The respondent stated:
I am writing to let you know that any letters or money that you or your brothers send will be sent back to you. I am currently having hard time and I had to block mails. I hope you can forgive me and understand my situation.
58 The letter then contains expressions of goodwill and good luck and a prayer that there be a release and a “prayer for the brothers”. I infer that the respondent is there referring to the two brothers involved in the confrontation with the police. There is no expression of dismay or disgust in the letter. There is no expression of unwillingness to marry, as had been previously proposed to her. There is nothing to indicate or suggest that the Clavell family should stop contacting her, including upon her release. In short, I do not accept that letter supports an inference that the respondent has deradicalized.
59 It was submitted that the reasons for the respondent travelling to Turkey and Syria were to join an IS society and to participate in that society as the wife of a fighter and as a nurse. I do not accept that submission, at least not wholeheartedly. I find that the society to which counsel was referring is a society that is an ideal, and that the ideal has not yet been achieved. It is that ideal society for which IS is fighting. I find that IS ideology is such that its fighters will attempt to achieve that society by any means, however abhorrent. Women in the society, I infer, are subservient, but that makes them no less dangerous. I find that the material in the respondent’s possession included video material depicting children being put to use in the most abhorrent ways. Family life in an IS society is not to be equated with family life as we understand it to be.
60 Whilst it might be the case that the respondent intended to provide medical assistance, I find that her intention was to provide medical assistance only to IS fighters, that is to persons who were advancing the IS cause, and not to any person who might be injured by them. Again, I do not consider that to be nursing in the sense that we, in an Australian society, would understand the profession of nursing to be.
61 There are two reports before the Court. They contain material in the nature of expert opinion. They contain assessments of the risk presented by the respondent. I have given careful consideration to them and careful consideration to the context in which they have been prepared.
62 I have read the report of a psychologist who assessed the respondent in advance of a sentencing hearing. Dr Lim was engaged in 2018. She assessed the respondent in July, August and October 2018. By that timing, I infer that Dr Lim was unaware of the Clavell correspondence. I have taken into account that the author concluded with the view that the respondent was assessed as having a low risk of recidivism and a low risk of causing serious physical harm to herself or others at the present time. That assessment, however, related to the respondent’s then current incarceration and was made at a time when the period of the incarceration was indefinite or at least undetermined.
63 The assessment was based on an assumption that the respondent had disengaged from previously held extreme religious ideologies due to restrictions on her current environment. The report stated:
I do not believe that [the respondent] is a dangerous person who is inherently predisposed to committing acts of physical violence. She does not possess, nor had she displayed the typical gamut of static and dynamic criminogenic risk factors that are typically associated with an elevated risk of criminally aggressive/violent behaviours, such as juvenile offending history, substance abuse, a severe personality disorder, or severe psychological dysfunction/maladjustment prior to the period of 2 years leading up to these terrorism-related charges. She is also capable of empathy and feelings of guilt and remorse, which are generally considered to be positive behavioural and prognostic indicators towards treatment, responsivity and success.
64 Dr Lim went on to say that:
It should be noted however, that [the respondent’s] risk of violence recidivism is likely to be elevated to ‘Moderate’ if she is released without having had the opportunity to engage in targeted and individualised professional interventions, and if there is no comprehensive rehabilitation plan in place prior to her release from prison to support her to continue addressing her identified risk factors …
65 I have found in this proceeding that no such support or services or interventions were indeed provided.
66 The report refers to the respondent being in a state of “persistent psychological vulnerability” at the time of the events that led to the criminal charge. For the purposes of the present application, it is appropriate to proceed on the basis that the respondent continues to be in a state of “persistent psychological vulnerability”.
67 I deduce from the report some of the reasons why a person in the respondent’s position, particularly a young woman otherwise having some promise, would adopt extreme religious ideologies. The reasons are highly complex, as is the process of assessing the risk that such a person might present to the community, particularly after a period of incarceration having the effect of restricting her access to materials of the kind that had previously inspired her.
68 I have taken into account what was said in the prosecution address at the criminal trial, but that must be understood in the context of a case in which the prosecutor was urging on the jury an understanding of what the case was (and what the case was not) about. It was the Crown’s obligation to prove only certain elements. I understand the prosecutor’s submission to be urging the jury not to be distracted by issues that were not relevant to the elements of the charge to which the trial related.
69 Returning to the Clavell correspondence, I find that the fact that the respondent received and responded to the correspondence does demonstrate and reinforce the psychologist’s opinion that she has poor psychological resistance and is naive in the extreme. To engage with strangers whilst she was in prison, including strangers who she knew were also in prison, demonstrates that the respondent has no insight into her own susceptibility.
70 The second report is a Joint Terrorism Threat Assessment. It expresses certain views about the risk profile of the respondent. In particular, it expresses the view that the respondent’s knowledge and skills to carry out an act of politically-motivated violence was assessed as “highly unlikely” and her risk of having access to resources was assessed as “unlikely”.
71 I have adopted a different approach to that adopted in the report. In essence, I have disagreed with it.
72 The assessment of the respondent’s risk is for the Court to make. I do not agree that it is unlikely that the respondent will have access to resources to commit a terrorist act. I may take on judicial notice that terrorist acts have been committed with the most banal domestic items. There is some tempering of the opinion in the report to that effect in any event.
73 As to knowledge and skills, I place little weight on the personal knowledge and skills of the respondent as I have perceived and described the risk that she presents. The risk is a risk that she will undertake and carry out instructions of others who have the necessary knowledge and skills and that she will lack the confidence or the psychological resilience to resist.
74 It was submitted that because the respondent had not committed a violent act in the past and because she had not expressed any desire to do so it followed that she had no propensity to do so in the future. I do not mean to oversimplify the argument, but those were the fundamental steps in reasoning that were urged upon me.
75 I take into account that the activities and behaviour of the respondent were interrupted when she was arrested.
76 The respondent’s propensity for participating in a violent act must be assessed in all of the circumstances, not only by reference to her motivations for travelling to Syria or Turkey or other places in the Middle East. The absence of an expressed desire to personally commit a specific act of violence is, of course, relevant, but it must be given less weight in circumstances where there has been an express allegiance to a leader who has urged upon his followers the necessity to commit an act of violence in order to achieve the cause of IS. It is to be given less weight in circumstances where material depicting gross acts of violence were consumed and stored over a significant period and in significant quantities by the respondent.
77 The respondent has, I conclude, an obsession with violence.
78 It was also submitted that the Court should be in a position to identify with some specificity what the respondent will do if the control order is not made. In my view, it is not necessary to undertake that task. I have found that there is a high likelihood that the respondent will seek out, engage and marry likeminded persons and that she is a person with poor psychological resilience. The risk is that she will do whatever it is that she is told to do.
79 I will now explain why I am not prepared to make a control order in terms of control 9, as originally proposed. I decline to impose that control in the exercise of my discretion principally because non-compliance with the control order attracts a criminal sanction such that the obligation that is to be imposed must be one that is factually and legally clear.
80 Describing an obligation as one prohibiting a person from engaging in paid, or unpaid, “employment” without first giving notification raises an issue that is bedevilled with legal uncertainty. A person might engage in meaningful work, but whether or not that work arrangement constitutes an employment relationship is sometimes very difficult even for a Court to ascertain. It should not be left to somebody in the respondent’s position to work that out for herself so as to conclude whether or not she is or is not under an obligation to notify.
81 Moreover, Div 104 of the Code is expressed mostly in terms of orders that prohibit specific activities, including activities undertaken in the course of employment. I do not consider mere employment to be a sufficiently specific activity to form the basis of a control expressed in terms of the proposed control 9. The control orders already contain prohibitions on activities that must not be undertaken whether in employment or not. If the applicant is concerned that there are gaps in those controls, then it ought to have applied for orders prohibiting the engagement in other specific activities whether in the course of employment or otherwise. In my view, the controls, without control 9, are sufficient to address the risk that I have identified.
82 As for the requirement of proportionality, the controls restrict, and in some cases significantly so, the respondent’s freedom of movement, her freedom of association and communication, her access to certain materials, that is, information of a specific kind, and her access to and use of specific articles. They restrict the respondent’s means of communication, including by the hardware devices and the software applications that can be used, and they facilitate the ability of the police to monitor her activities. Some of the orders are intended to achieve more than one of those objectives and they overlap considerably. I have had regard to the impact that the orders would have on the respondent as a young woman and especially having regard to the vulnerable position that she is in, but the evidence before me at this stage of the proceeding in that regard is slight, other than inferring the obvious from the orders themselves.
83 I have not had the benefit of any evidence at this stage from the respondent as to her personal circumstances. It might be that some of these controls have a greater impact upon her than might otherwise appear on their face.
CONFIRMATION HEARING
84 As has been mentioned, since the interim order was made the respondent has sought and obtained orders for the adjournment of the confirmation hearing. At the time of publication of these written reasons, the confirmation hearing is to commence on 9 June 2020.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. |
