FEDERAL COURT OF AUSTRALIA

Booth v Namoa (No 2) [2020] FCA 73

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 104.14(4) of the Criminal Code, being the Schedule to the Criminal Code Act 1995 (Cth), the interim control order made in relation to the respondent on 19 December 2019 be confirmed to apply to the respondent without variation in the terms of the confirmed control order set out in the Annexure to these Orders.

2.    The respondent’s lawyer may attend the AFP Sydney office at 110 Goulburn St, Sydney NSW between 9 am to 4 pm, Monday to Friday in order to obtain a copy of these Orders.

THE COURT NOTES THAT:

3.    It is satisfied on the balance of probabilities that,

(a)    for the purpose of s 104.4(1)(c)(iv) of the Criminal Code, the respondent has been convicted in Australia of an offence relating to terrorism or a terrorist act, namely conspiring to do acts in preparation for, or planning, a terrorist act between 8 December 2015 and 25 January 2016 at Sydney, contrary to ss 11.5 and 101.6 of the Criminal Code.

(b)    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 purposes of s 104.4(1)(d)(i) and (ii) of the Criminal Code.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    On 19 December 2019, on the application Sandra Booth, a Commander in the Australian Federal Police, I made an interim control order in respect of the respondent, Alo-Bridget Namoa, pursuant to s 104.4 of the Criminal Code in the Schedule to the Criminal Code Act 1995 (Cth): Booth v Namoa (No 1) [2019] FCA 2213. On that occasion, pursuant to s 104.5(1)(e) of the Code, I fixed today for the hearing of any application to confirm the interim control order.

Background

2    On 22 December 2019, Ms Namoa completed her sentence of imprisonment and was released from prison. On the same day, a member of the Australian Federal Police, Constable David Gale, served on her the interim control order and an Australian Federal Police document headed “Notification and Explanation of an Interim Control Order” (the AFP notification), which he read to her. He told her that the AFP notification contained a typographical error in saying that if the Court confirmed the interim control order on 3 February 2020, it would cease on 18 December 2021, instead of the correct date, 18 December 2020.

3    I am satisfied that, first, the AFP notification conveyed the information that s 104.12(1)(b) required to be given to Ms Namoa, and, secondly, that she told Constable Gale that she understood the information in the AFP notification after he had read it to her, and, thirdly, by doing so he complied with his obligation under s 104.12(1)(c) to ensure that Ms Namoa understood that information in the circumstances.

4    On 22 January 2020, pursuant to s 104.12A(1) of the Code, Commander Booth elected to confirm the interim control order, and notified the Court of that election.

5    On 24 January 2020, Constable Gale served Ms Namoa with, first, a letter dated 23 January 2020 from the Australian Government Solicitor (the 23 January letter), secondly, pursuant to s 104.12A(2)(a)(i), a copy of Commander Booth’s notification and her election dated 22 January 2020 to confirm the interim control order, thirdly, a corrected version of the AFP notification that accurately stated that, if confirmed today, the control order would expire on 18 December 2020, and fourthly, two USB devices that contained electronic or soft-copy versions of the submissions that Commander Booth had made to the Court in support of her application for the interim control order, and her affidavit sworn on 5 December 2019, including all the exhibits to that affidavit.

6    The 23 January letter recorded that Ms Namoa was being given the two USB devices and the notification of Commander Booth’s election to confirm the interim control order, in compliance with legislative requirements, and to enable her to understand, in writing, the facts, matters and circumstances in which Commander Booth sought the confirmation. Constable Gale said that he provided the electronic version of the material on the USB devices to Ms Namoa because of the size of the hard copy, or the printed version, of it and the fact that previously she had been provided with a hard copy version of the same material, apart from an annexure to one of the exhibits and Commander Booth’s submissions. Constable Gale also told Ms Namoa that her legal representatives had been given the same documents that she had just received.

7    In addition, on 24 January 2020, the Australian Government Solicitor wrote to my associate and to Stephen Tully, the solicitor for Ms Namoa, referring to the hearing listed today. The email was written with Mr Tully’s consent, and recorded that for the purposes of the confirmation hearing today:

    Ms Namoa did not object to any part of Commander Booth’s affidavit and the exhibits to it that were relied on by Commander Booth for the purposes of obtaining the interim control order that I made;

    neither party wished to rely on any further evidence at the confirmation hearing, other than Constable Gale’s two affidavits; and

    neither Ms Namoa nor her legal representatives wished to attend the confirmation hearing (the latter information being relevant to the application of s 104.14(4) of the Code).

8    The 23 January letter also stated that the Australian Government Solicitor had spoken to Mr Tully, who had informed them of the matters that the email to the Court of 24 January 2020 recorded.

9    Commander Booth relies today on the material that Constable Gale served on Ms Namoa on 24 January 2020 as the basis on which I should make an order confirming the interim control order pursuant to the provisions of s 104.14.

The legislative context

10    An application for confirmation of an interim control order under s 104.14 of the Code is a final, not an interlocutory, hearing by force of s 104.28A(2)(b). Such an application can be made in accordance with s 104.14(1A) because there is in force an interim control order in relation to Ms Namoa.

11    Commander Booth made her election, on 22 January 2020, to seek confirmation of that order, and I am satisfied, on the balance of probabilities, that Constable Gale complied with s 104.12 on 22 December 2019, and with s 104.12A(2) on 24 January 2020, when, on each of those days, he served Ms Namoa with the respective sets of material, as I have found above.

12    Section 104.14(4) provides that the Court may confirm an interim control order without variation if, as has occurred today, none of Ms Namoa or her legal representatives attend the Court on the day specified pursuant to s 104.5(1)(e) in the interim control order (being 3 February 2020) as the day on which Commander Booth could apply to confirm it.

13    Ms Namoa did not appear today when the matter was called outside the Court, as had been anticipated by Mr Tully’s communications with the Australian Government Solicitor on 23 and 24 January 2020.

14    Under s 104.14(1), Commander Booth and her legal representatives may adduce evidence and make submissions in relation to the confirmation of the interim control order. Next, s 104.14(3) and (3A) provide that the Court must, first, take judicial notice of the fact that the initial request for the interim control order was made in particular terms (s 104.14(3A)(a)), secondly, consider that request, any evidence adduced and submissions made in relation to the confirmation under s 104.14(1) (s 104.14(3)), and, thirdly, act only on that evidence and those submissions (s 104.14(3A)(b)).

15    In accordance with the absurdly prescriptive, over-complex Commonwealth Parliamentary drafting style, if an order confirming an interim control order is made ss 104.15 and 104.16 provide that the interim control order ceases to have effect, but something called “the confirmed control order begins to be in force” when the Court makes something called “a corresponding order under section 104.16”, which provides:

104.16 Terms of a confirmed control order

(1) If the issuing court confirms the interim control order under section 104.14, the court must make a corresponding order that:

(a)     states that the court is satisfied of the matters mentioned in paragraphs 104.4(1)(c) and (d); and

   (b)     specifies the name of the person to whom the order relates; and

(c)     specifies all of the obligations, prohibitions and restrictions mentioned in subsection 104.5(3) that are to be imposed on the person by the order; and

(d)    specifies the period during which the order is to be in force, which must not end more than 12 months after the day on which the interim control order was made; and

(e)    states that the person’s lawyer may attend a specified place in order to obtain a copy of the confirmed control order.

Note: If the person is 14 to 17 years of age, then a confirmed control order must not end more than 3 months after the day on which the interim control order is made (see section 104.28).

(2) Paragraph (1)(d) does not prevent the making of successive control orders in relation to the same person.

Consideration

16    Because Ms Namoa and her legal representatives have not appeared today and, indeed, consented to this course, I admitted into evidence so much of the affidavit of Commander Booth sworn on 5 December 2019 and its exhibits as were before me on 19 December 2019, and considered the original request for the interim control order, and Commander Booth’s submissions in support of the making of the final form of the interim control order, which her counsel relied on again today, on the basis only of that evidence and those submissions consistent with the power that s 104.14(4) confers on the Court.

17    Accordingly, I am satisfied, on the balance of probabilities, that the interim control order should be confirmed, without variation, to be in force until 18 December 2020. Of course, the Code provides for circumstances in which persons, including Commander Booth and Ms Namoa, may apply to vary or revoke the confirmed control order prior to what would otherwise be its expiry on 18 December 2020.

18    My reasons for being satisfied that I should confirm the interim control order are that, first, Ms Namoa was properly served, in accordance with ss 104.12 and 104.12A(2), so as to enliven the power in s 104.14(4), secondly, the substantive evidence before me today is exactly the same as that before me on 19 December 2019, and thirdly, the reasons I gave then for making the interim control order remain apposite and justify its continuation to remain in force until 18 December 2020.

Conclusion

19    In those circumstances, I will make an order confirming the interim control order without variation.

Associate:

Dated:    6 February 2020