FEDERAL COURT OF AUSTRALIA
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Pursuant to s 104.4 of the Criminal Code, which is the Schedule to the Criminal Code Act 1995 (Cth), upon the Respondent being personally served, he is bound by the terms of the Interim Control Order (ICO) set out in the schedule to the orders.
2. The Applicant take all reasonable steps to ensure that any request for approval which the Respondent makes to an AFP Superintendent as defined in paragraph [23.1(a)] of the ICO, in accordance with the ICO, including any request for exemption under paragraph [22] is determined as soon as reasonably practicable.
3. Acting pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) and on the ground in s 37AG(1)(d), there is to be no publication of the address mentioned in paragraph [1.1] of the terms of the ICO, the name of the police station and the address mentioned in paragraph [2.2] of the ICO, the names of any of the individuals named in paragraph [16.3(a)] in the ICO and any of the dates of birth of the persons listed in paragraph [11.1(c)] of the ICO.
4. The form of the order which is to be available to the public on the Court’s Portal is to have the details to which Order 3 refers redacted.
5. Any further affidavits to be relied upon by the Applicant at the hearing fixed by Order 8 in the schedule are to be filed and served by 19 May 2020.
6. Any further affidavits to be relied upon by the Respondent at that hearing are to be filed and served by 26 May 2020.
7. The Applicant is by 19 May 2020 to file and serve an outline of submissions to be made at that hearing, with that outline not to exceed 10 pages.
8. The Respondent is by 26 May 2020 to file and serve an outline of submissions to be made at that hearing, with that outline not to exceed 10 pages.
9. There be liberty to the parties to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SCHEDULE
1. This Interim Control Order (ICO) relates to the respondent, Paul Dacre.
2. The Court is satisfied on the balance of probabilities that, for the purpose of s 104.4(1)(c)(iv) of the Criminal Code (being the Schedule to the Criminal Code Act 1995 (Cth)), the respondent has been convicted in Australia of an offence relating to terrorism or a terrorist act, namely engaging in conduct in preparation for incursions into foreign countries for the purpose of engaging in hostile activities contrary to ss11.2A and 119.4(1) of the Criminal Code.
3. 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 ICO is reasonably necessary, and reasonably appropriate and adapted, for the purposes of s 104.4(1)(d)(i) of the Criminal Code.
4. The obligations, prohibitions and restrictions to be imposed on the respondent by the ICO are those set out in Annexure A to the Schedule.
5. A summary grounds on which the ICO is made is set out in Annexure B to this Schedule.
6. The ICO does not begin to be in force until it is served personally on the respondent.
7. If this ICO is confirmed, the confirmed control order will be in force for 12 months from today.
8. The respondent may attend the Federal Court of Australia, located at Commonwealth Law Courts Building, 305 Williams Street, Melbourne Victoria on 3 June 2020 at 10.45am (AEST) for the Court to:
(a) confirm (with or without variation) this Interim Control Order;
(b) declare this Interim Control Order to be void; or
(c) revoke this Interim Control Order.
9. Unless otherwise notified to the parties, the hearing on 3 June 2020 will be conducted by video link using the Teams software with liberty to the parties to appear at that hearing using the Teams software from a location other than the Court’s Registry.
10. The respondent’s lawyer may attend the office of the Australian Federal Police at 383 Latrobe Street, Melbourne, Victoria between 9 am to 4 pm, Monday to Friday in order to obtain a copy of this ICO.
Annexure A
Annexure A
1. Control 1
1.1. You are required to remain at [REDACTED] or other such 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 AFP Superintendent
(the specified premises),
between the hours of 12:00 am and 6:00 am local time each day (the curfew period) 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. During such a time as non-essential movement outdoors is restrict as a consequence of the COVID-19 pandemic, you are required to report to a police officer by Skype each week on Monday and Thursday between 7:00 am and 7:00 pm local time.
2.2 When Victoria Police policy ceases to restrict in person reporting at police stations due to COVID-19, you are required to report to a police officer each week on Monday and Thursday between 7.00 am and 7.00 pm local time at [REDACTED].
2.3 AFP is to provide you with no less than 3 days written notice of the first occasion when Control 2.2 will take effect, after which time you are required to report in accordance with that control, unless notified in writing by the AFP Control 2.1 has been reinstituted if COVID-19 restrictions on movement are reintroduced.
3. Control 3
3.1. You are prohibited from being at any of the following areas:
a. within the exclusion zone set out in Annexure 1 at Melbourne International Airport (Tullamarine);
b. within the exclusion zone set out in Annexure 2 at Avalon Airport;
c. within the exclusion zone set out in Annexure 3 at Moorabbin Airport;
d. within the exclusion zone set out in Annexure 4 at Essendon Fields Airport;
e. within the exclusion zone set out in Annexure 5 at Port Melbourne;
f. within 1 km of any Australian airport (besides Melbourne Tullamarine Airport, Avalon Airport, Moorabbin Airport, and Essendon Fields Airport which are addressed in Controls 3.1.a., 3.1.b., 3.1.c., and 3.1.d.) which has an international point of departure, or from which a person can board or charter a flight for an international destination;
g. within 1 km of any Australian port (besides Port Melbourne, which is addressed in Control 3.1.e.) that has an international point of departure, or from which a person can board or charter a marine vessel for an international destination;
h. inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there;
i. at the residence of any person with whom, by reason of Control 11, you are prohibited from communicating or voluntarily associating;
j. any place in Australia outside the State of Victoria, unless:
i. you contact an AFP Superintendent in writing requesting approval to travel in Australia, outside the State of Victoria, for a specific period of time; and
ii. an AFP Superintendent consents to the proposed travel in writing.
4. Control 4
4.1 You are prohibited from leaving Australia.
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, producing, storing or distributing documents (including documents in electronic form) or electronic media, or attempt to access, acquire, possess, produce, store or distribute 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;
h. broadcast on one of the following streaming services: Netflix; STAN; ABC iView; or SBS on demand; or
i. served on you or your legal representatives by or on behalf of a senior AFP member in the Federal Court proceeding relating to this interim control order, including any appeal from such proceeding, and is accessed, possessed, and stored solely for the purposes of proceedings in the Federal Court relating to this interim control order, including any appeal from such proceeding.
6.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing, producing, storing or distributing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess, produce, store or distribute 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 within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); 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;
l. broadcast on one of the following streaming services: Netflix, STAN, ABC iView, SBS on demand; or
m. served on you or your legal representatives by or on behalf of a senior AFP member in the Federal Court proceeding relating to this interim control order, including any appeal from such proceeding, and is accessed, possessed, and stored solely for the purposes of proceedings in the Federal Court relating to this interim control order, including any appeal from such proceeding.
7. Control 7
7.1. You are prohibited from the following specified activities (including in respect of your work or 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. execution;
e. beheading;
f. suicide attack;
g. bombing;
h. terrorist attack;
i. Islamic State;
j. propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth);
k. 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).
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 work without first notifying the AFP Superintendent in writing.
9.2. In notifying the AFP Superintendent, you must submit a written notice to the AFP Superintendent which includes information about the proposed work, including details of the person for whom you will be undertaking the work (eg the employer), including their name and place of business, and the nature of the work that will be undertaken.
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 cartridge ammunition within the meaning of s 3(1) of the Firearms Act 1996 (Vic);
b. a ‘prohibited weapon’ within the meaning of s 3(1) of the Control of Weapons Act 1990 (Vic);
c. any quantity of petrol exceeding 4 litres that is not contained in the petrol tank of a vehicle that you have purchased, rented or driven in compliance with Control 8.1;
d. any quantity of any chemical which is not consistent with reasonable domestic use;
e. an article or device, not being a firearm, capable of discharging by any means:
i. any irritant matter in liquid, powder, gas, chemical form or any dense smoke; or
ii. any substance capable of causing bodily harm;
except for reasonable domestic use;
f. a detonator;
g. a fuse capable of use with an explosive or a detonator;
h. a knife, in a public place, without reasonable excuse;
i. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.
11.1. You are prohibited from communicating or voluntarily associating with:
a. any person incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility;
b. any person located in Turkey, Iraq, Syria or the Philippines;
c. any of the following specified individuals:
i. Kadir KAYA (Date of birth: [REDACTED]);
ii. Antonio GRANATA (Date of birth: [REDACTED]);
iii. Shayden THORNE (Date of birth: [REDACTED]);
iv. Murat KAYA (Date of birth: [REDACTED]);
v. Robert CERANTONIO (Date of birth: [REDACTED]);
vi. Mohammed Junaid THORNE (Date of birth: [REDACTED]);
vii. Matthew SMITH aka Abdul MATEEN (Date of birth: [REDACTED]);
viii. Elmas BEKIROVSKI (Date of birth [REDACTED]);
ix. Naseem Abdul R VAN HERWAARDE (Date of birth: [REDACTED]);
x. Omar Abdirahman ISSAK (Date of birth: [REDACTED]).
12. Control 12
12.1. You are prohibited from accessing or using, any mobile telephone device and SIM card other than a single mobile telephone device and SIM card provided by the AFP (permitted mobile phone) for your use at any one time, and your use of such a permitted mobile phone is subject to the following conditions:
a. prior to using a permitted mobile phone an AFP Superintendent will provide you with the following information in writing: the International Mobile Equipment Identity number for a permitted mobile phone, the Integrated Circuit Card Identifier for the SIM card you will use with a permitted mobile phone, the telecommunication service provider which you will use with a permitted mobile phone, the password for a permitted mobile phone and the phone number to which a permitted mobile phone will be connected;
b. you must not tamper with, damage or destroy any component of a permitted mobile phone or any equipment necessary for the operation of a permitted mobile phone, or cause or permit another person to do any of those things;
c. at any time a police officer from the AFP or Victoria Police requests, you must present a permitted mobile phone for inspection, repair, service or replacement as required;
d. 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 a permitted mobile phone;
e. if you change the password for the permitted mobile phone, you must provide the new password to an AFP Superintendent, or a police officer acting under an AFP Superintendent’s direction, if you are requested to do so by an AFP Superintendent or that police officer; and
f. if you become aware that a permitted mobile phone, or any equipment necessary for the operation of the permitted mobile phone, is not in good working order, notify an AFP member as soon as practicable, but no later than twelve hours after becoming so aware.
12.2. You are prohibited from causing or permitting another person to use or access a 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, or causing any person to access or use on your behalf, any fixed or landline telephone service other than a single service that has been approved in writing by an AFP Superintendent for you to access or use at any one time.
13.2. To seek approval, you must:
a. submit a written request to an AFP Superintendent which nominates a fixed or landline telephone service; and
b. provide an AFP Superintendent with sufficient detail and any information requested by an AFP Superintendent for the purpose of identifying a fixed or landline telephone service that you will be accessing or using.
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 an AFP Superintendent as soon as possible after accessing or using such a public telephone and:
a. provide sufficient detail to an AFP Superintendent to identify the public telephone that you accessed or used, and the date, time and phone number called; and
b. you explain the nature of the emergency which required you to access or use, or cause another person to access or use on your behalf, that public telephone.
15. Control 15
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. Facebook
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
jj. TikTok
kk Wickr, and
ll. Zoom.
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 gaming applications or software that connects to other users or servers, via the internet or Local Area Network (LAN).
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, Skype, except for the following purposes, and subject to the requirements in Controls 16.4, 16.5 and 16.6:
a. contacting your child [REDACTED], her mother [REDACTED], your mother [REDACTED], your father [REDACTED]and your stepfather [REDACTED];
b. contacting your legal representatives to obtain legal advice, and/or contacting other professionals who may be required to do an online assessment of you for legal purposes;
c. contacting a police officer for the purpose of reporting in accordance with Control 2;
d. contacting any other person approved in writing by an AFP Superintendent.
16.4. At least 24 hours prior to accessing or using Skype for the purposes of contacting your child, your legal representative or other person in accordance with Control 16.3, you must provide to an AFP Superintendent:
a. the username and password for the Skype account you will be using to make that contact, unless you have previously provided the username and password you will be using to make that contact to an AFP Superintendent in compliance with Control 16.3 and that username and password have not changed.
b. the Skype username of the person you will be contacting, unless you have previously provided the Skype username of the person you will be contacting to an AFP Superintendent in compliance with Control 16.3 and that username has not changed.
16.5 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, including any software, mobile application or hardware.
16.6 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, including any software, mobile application or hardware.
16.7 Controls 16.1 to 16.6 do not prohibit access to or use of 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, or causing any person to access or use on your behalf, any internet services other than:
a. a single service that has been approved in writing by an AFP Superintendent for you to access or use at any one time (permitted internet service); and
b. a television connected to an internet service at the specified premises, subject to all of the existing Controls.
17.2. You are prohibited from allowing any other person to access or use a permitted internet service.
17.3. You are prohibited from causing any other person to access or use on your behalf any other internet service.
17.4 You are prohibited from:
a. using a virtual private network (VPN) service;
b. using the TOR network; and
c. accessing any Darknet services (denoted by “onion” top level domain suffix).
18. Control 18
18.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any electronic mail (email) account other than a single account that has been approved in writing by an AFP Superintendent for you to access or use at any one time (the permitted email account).
18.2. To seek approval of an AFP Superintendent you must submit a written request and:
a. nominate the email account; and
b. provide any other information requested by, or on behalf of, the AFP Superintendent 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 a permitted email account.
19.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any computer other than a single computer that has been approved to you by the AFP for you to access and use at any one time (permitted computer) and your use of a permitted computer is subject to the following condition:
a. if you change the password for a permitted computer, you must provide the new password to the AFP Superintendent, or a police officer acting under the AFP Superintendent’s direction, if you are requested to do so by the AFP Superintendent or the police officer.
19.2. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any tablet device other than a single tablet device that has been approved in writing by an AFP Superintendent for you to access or use at any one time (permitted tablet device) and your use of a permitted tablet device is subject to the following conditions:
a. before using a permitted tablet device, you must provide the password for a permitted tablet device to the AFP Superintendent; and
b. if you change the password for a permitted tablet device, you must provide the new password to the AFP Superintendent, or a police officer acting under the AFP Superintendent’s direction, if you are requested to do so by the AFP Superintendent or the police officer.
19.2. To request approval under Control 19.2 you must:
a. submit a written request to the AFP Superintendent which nominates a tablet device; and
b. provide any information requested by or on behalf of the AFP Superintendent in relation to, or for the purpose of identifying and accessing, a nominated tablet device.
20.1. 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 per week.
20.2. If you agree to participate in such counselling or education you must advise the AFP Superintendent in writing that you have commenced the counselling or education and provide the AFP Superintendent the name and qualifications of the professional you have engaged.
21. Exemption Requestion by you
21.1. You may request the AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Controls 1.1, 2 and 3.1.
21.2. To request an exemption, you must:
a. submit a written request to the AFP Superintendent which: (i) identifies the Control in respect of which you seek an exemption; (ii) explains the extent to which you seek to be exempted from the Control; and (iii) explains your reason(s) for seeking the exemption; and
b. provide any other information requested by, or on behalf of, the AFP Superintendent for the purposes of determining whether to approve the exemption.
21.3. The AFP Superintendent may grant an exemption subject to conditions specified in writing.
21.4. You must comply with all of the conditions specified in writing by the AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.
21.5. A request for an exemption in respect of Controls 1.1 or 2.1 must be made three business days before the material time and date.
21.6. A request for an exemption in respect of Control 3.1 must be made seven business days before the material time and date.
21.7 If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused.
22. Exemption granted by the AFP without a request from you
22.1 An AFP Superintendent may grant an exemption, initiated by the AFP, to the requirements or prohibitions specified in the Controls with your consent.
22.2 The AFP Superintendent may grant an exemption subject to reasonable conditions specified in writing provided on reasonable notice to you and to which you consent in writing.
22.3 You must comply with all of the conditions specified in writing by the AFP Superintendent. If you do not comply with a condition of an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.
23. Interpretation
23.1. In this Interim Control Order:
a. AFP Superintendent means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter-Terrorism portfolio.
b. Password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device.
c. 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 Victoria Police Act 2013 (Vic).
d. 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); and
iii. in relation to a request for an exemption to the requirement in Control 3.1.j the time and date at which you wish to depart Victoria.
Annexure 1
Annexure 2
Annexure 3
Annexure 4
Annexure 5
ANNEXURE B
EX TEMPORE REASONS FOR JUDGMENT
WHITE J:
1 I am dealing with an application for the making of an Interim Control Order (ICO) in relation to Paul Dacre, pursuant to s 104.4 of the Criminal Code contained in the Schedule to the Criminal Code Act 1995 (Cth).
2 On 22 February 2019, Mr Dacre was sentenced, on his plea of guilty, in the Supreme Court of Victoria for the offence of preparing for incursion into a foreign country for the purpose of engaging in hostile activities, in contravention of ss 11.2A and 119.4(1) of the Criminal Code. He was sentenced to imprisonment for four years (after a reduction for his plea of guilty) and a non-parole period of three years was fixed. As Mr Dacre had been in custody since his arrest on 10 May 2016, the term of his imprisonment expired last week and, on 8 May 2020, he was released from custody.
3 As Anastassiou J noted in Sandra Booth v Murat Kaya [2020] FCA 25 at [4], the sentencing remarks of Croucher J in the Supreme Court of Victoria provide a detailed narrative of the events and conduct of Mr Dacre and his co-offenders: R v Cerantonio [2019] VSC 284. Anastassiou J summarised the prosecution case as follows:
[4] In summary, the Crown’s case was that between 22 October 2015 and 10 May 2016, the respondent and his co-offenders joined in an agreement to engage in conduct in Australia, and did engage in such conduct, preparatory to one or more of them entering the Philippines with intent to encourage or join with others there in conduct aimed at overthrowing the government of the Southern Philippines by force or violence. The Crown alleged that the motivation for the agreement between the respondent and his co-offenders was to enable the Southern Philippines ultimately to be governed by Islamic law, otherwise known as “Sharia law”. The hostile activity that the respondent and his co-offenders intended was that one of them, Mr Cerantonio, would enter the Philippines to encourage persons of the Islamic faith to carry out actions directed at achieving the overthrow by force or violence of the government of the Southern Philippines.
[5] By 22 October 2015, neither the respondent or any of his co-offenders were able to gain entry to a foreign country or to assist Mr Cerantonio to do so. At different times during 2015 and 2016, a number of the co-offenders, including the respondent, had sought to leave Australia but were refused departure by the authorities. Eventually, all six of the co-offenders had their Australian passports cancelled. In that context, they agreed to acquire a boat and other necessary equipment to leave Australia in a covert manner to facilitate ultimate entry to the Philippines. An element of their agreement was that only Mr Cerantonio was to be involved in actually encouraging others to attempt to overthrow the government of the Southern Philippines by force or violence. There was no formed plan by Mr Cerantonio as to how the encouragement of others in the Philippines was to occur. The means by which he was to encourage others, and who those others might be, were unknown.
[6] In the course of his sentencing remarks, Croucher J observed at [91]:
First, as I have just intimated, the whole venture was poorly planned and, I fear, foredoomed to failure. Given the ill-suited vessel the group had purchased and their lack of serious boating experience, it is hard to imagine that they would have made it very far past the breakers off the far north of Queensland.
4 The request for the ICO in respect of Mr Dacre was made on 6 May 2020 and, by an order of the Court on 8 May 2020, was listed for hearing today.
5 The request is supported by a substantial affidavit by the applicant, Ms Booth. She holds the rank of Commander in the Australian Federal Police (AFP). Ms Booth’s substantive position is that of Manager, Counter Terrorism Operations South.
6 In accordance with the order of the Court, on 8 May 2020 counsel for Ms Booth filed written submissions in support of the application.
7 On 12 May 2020, the solicitor for Mr Dacre filed a one page written submission in response in which he said that Mr Dacre, having read the applicant’s submissions of 8 May, did not wish to make any submissions and would not oppose the making of an ICO. The solicitor indicated, however, that Mr Dacre may wish to make a submission in relation to the conditions in the ICO sought by the applicant. Mr Brand, who appeared today for Mr Dacre, did make some short submissions seeking in effect, non-publication orders with respect to particular aspects of the controls in the ICO.
8 Although Mr Dacre’s attitude makes the task of this Court on the present application more straightforward, it does not relieve the Court of its statutory responsibility to be satisfied on the balance of probabilities of the matters necessary for the making of an ICO. Those matters are specified in s 104.4(1) of the Criminal Code which provides:
(1) The issuing court may make an order under this section in relation to the person, but only if:
(a) the senior AFP member has requested it in accordance with section 104.3; and
(b) the court has received and considered such further information (if any) as the court requires; and
(c) the court is satisfied on the balance of probabilities:
(i) that making the order would substantially assist in preventing a terrorist act; or
(ii) that the person has provided training to, received training from or participated in training with a listed terrorist organisation; or
(iii) that the person has engaged in a hostile activity in a foreign country; or
(iv) that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or
(v) that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or
(vi) that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or
(vii) that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; and
(d) the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
(i) protecting the public from a terrorist act; or
(ii) preventing the provision of support for or the facilitation of a terrorist act; or
(iii) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
9 Section 104.4(1) requires the Court be satisfied of four separate matters before making an ICO:
(a) that the request is made by a senior AFP member and has been made in accordance with s 104.3 (s 104.4(1)(a));
(b) that the Court has received and considered such further information as the Court has required (s 104.4(1)(b));
(c) that at least one of the matters specified in subss (1)(c) is established; and
(d) that each of the obligations, prohibitions and restrictions to be imposed on the person is reasonably necessary, and reasonably appropriate and adapted, for the purpose of achieving at least one of the effects specified in subs (1)(d).
10 Section 104.5(3) lists 12 different forms of obligations, prohibitions and restrictions that the Court may impose on a person by an ICO. The maximum period for which an ICO may be in force is 12 months (s 104.5(1)(f)).
11 Section 104.4(2) elaborates subs (1)(d) by requiring the Court to take into account as a paramount consideration in all cases the objectives of Div 104 stated in s 104.1 and (as an additional consideration) the impact of the obligation, prohibition or restriction on the person’s circumstances (including the person’s financial and personal circumstances).
12 Looked at generally, a court asked to make an ICO is required, once satisfied of the first three elements in s 104.4(1), to make an evaluation of the obligations, prohibitions and restrictions which should be imposed having regard to what is reasonable necessary, reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act or preventing the provision of support for, or the facilitation of, a terrorist act or preventing the provision of, support for, or the facilitation of the engagement in a hostile activity in a foreign country.
13 In Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, the High Court considered the provision now located in s 104.4(1)(d)(i). Some of the Courts’ reasons are, however, equally applicable to subparas (ii) and (iii) in subs (1)(d). At [19], Gleeson CJ said:
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.
14 In their joint judgment, Gummow and Crennan JJ said at [99]:
Section 104.4(1) requires in para (d) that each of these be measured against what is “reasonably necessary” and also against what is “reasonably appropriate and adapted” for attainment of the purpose of public protection from a terrorist act. This is weighed with the impact upon the circumstances of the person in question as a “balancing exercise” (s 104.4(2)).
15 Earlier, at [92], Gummow and Crennan JJ said:
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.
16 The matters specified in s 104.4(1)(a) are of a formal nature. I am satisfied that Ms Booth has the standing to make the application, that she has made the request in the appropriate form, and that she has provided the Court with the information and documents required by s 104.3.
17 In relation to s 104.4(1)(b), the Court has not sought further information from Ms Booth.
18 In seeking the ICO in relation to Mr Dacre, Ms Booth relies upon s 104.4(1)(c)(iv) or, alternatively, s 104.4(1)(c)(vii). The question of whether the offence of which Mr Dacre was convicted is an offence relating to terrorism for the purposes of subs (1)(c)(iv) was considered by Anastassiou J in Booth v Murat Kaya and confirmed implicitly in Booth v Thorne [2020] FCA 445. Mr Murat Kaya and Mr Thorne were each one of Mr Dacre’s co-accused. I respectfully agree with the reasons of Anastassiou J and am therefore satisfied that the third matter about which the Court must be satisfied is established. That being so, it is not necessary to consider Ms Booth’s reliance in the alternative on s 104(4)(1)(c)(vii).
19 As already noted, in determining for the purposes of s 104.4(1)(d), whether the obligations, prohibitions, and restrictions to be imposed on the person by the ICO are reasonably necessary and reasonably appropriate and adapted for the specified purposes, the Court must take into account as a paramount consideration the objects of Div 104 stated in s 104.1.
20 The ICO proposed by Ms Booth in respect of Mr Dacre contains 20 different controls. Broadly speaking, the controls are of the following kind:
(a) a curfew condition;
(b) a reporting condition;
(c) a prohibition on being at airports or ports with an international point of departure;
(d) requirements that Mr Dacre not leave the State of Victoria or Australia;
(e) a requirement that he not be at the residence of any of his co-offenders and certain other individuals;
(f) prohibitions on engaging in a number of specified activities, which broadly speaking may have an association with terrorist activities;
(g) a prohibition on using a vehicle which exceeds a gross vehicle mass of 4.5 tonnes;
(h) a prohibition on undertaking paid work without first notifying the AFP Superintendent in writing;
(i) a prohibition on possessing or using certain items;
(j) a prohibition on communicating or voluntarily associating with identified persons, and in particular, with his co-offenders;
(k) a prohibition on using any mobile phone and SIM card other than one provided by the AFP;
(l) a prohibition on using a fixed or landline telephone service other than one approved by an AFP Superintendent;
(m) prohibitions on accessing or using a public telephone or satellite telephone service;
(n) a prohibition on accessing or using a large number of websites, applications and computer programs;
(o) a prohibition on accessing or using an internet service other than a service approved by an AFP Superintendent;
(p) a prohibition on using an email account other than an account approved in writing by an AFP Superintendent;
(q) a prohibition on using any computer other than a single computer provided by the AFP; and
(r) the obligation to consider, in good faith, participation in counselling or education relating to his spiritual, emotional and physical wellbeing.
21 This range of obligations, prohibitions and restrictions is extensive but it follows, in general form, the terms of ICOs made under s 104.4 in earlier cases and, in particular, in relation to some of Mr Dacre’s co-offenders.
22 Ms Booth has deposed that the controls, taken together, are intended to ensure that Mr Dacre:
(a) is provided with the opportunity to engage positively with the community upon his release from custody;
(b) is capable of being monitored by police during his reengagement with the community; and
(c) is prohibited from engaging in those behaviours and being exposed to those influences which may lead him to commit a terrorist act, provide support for or facilitate a terrorist act or provide support for or facilitate hostile activities in a foreign country.
23 Ms Booth’s affidavit contains a detailed explanation of why she considers each control is reasonably necessary and reasonably appropriate and adapted for the specified purposes.
24 As I indicated earlier, Mr Dacre has not challenged any aspects of Ms Booth’s explanation nor the appropriateness of any individual control. That means that it is not necessary for the Court to discuss in detail in these reasons the justifications advanced by Ms Booth. It is sufficient to indicate that, for the purposes of this interlocutory hearing, I accept that the controls proposed satisfy the requirements of s 104.4(1)(d). The attitude of the respondent makes it easier for the Court to attain that degree of satisfaction.
25 There will accordingly be an order in the terms proposed by Ms Booth. I make the following orders:
(1) Pursuant to s 104.4 of the Criminal Code, which is the Schedule to the Criminal Code Act 1995 (Cth), upon the Respondent being personally served, he is bound by the terms of the Interim Control Order (ICO) set out in the schedule to the orders.
(2) The Applicant take all reasonable steps to ensure that any request for approval which the Respondent makes to an AFP Superintendent as defined in paragraph [23.1(a)] of the ICO, in accordance with the ICO, including any request for exemption under paragraph [22] is determined as soon as reasonably practicable.
(3) Acting pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) and on the ground in s 37AG(1)(d), there is to be no publication of the address mentioned in paragraph [1.1] of the terms of the ICO, the name of the police station and the address mentioned in paragraph [2.2] of the ICO, the names of any of the individuals named in paragraph [16.3(a)] in the ICO and any of the dates of birth of the persons listed in paragraph [11.1(c)] of the ICO.
(4) The form of the order which is to be available to the public on the Court’s Portal is to have the details to which Order 3 refers redacted.
(5) Any further affidavits to be relied upon by the Applicant at the hearing fixed by Order 8 in the schedule are to be filed and served by 19 May 2020.
(6) Any further affidavits to be relied upon by the Respondent at that hearing are to be filed and served by 26 May 2020.
(7) The Applicant is by 19 May 2020 to file and serve an outline of submissions to be made at that hearing, with that outline not to exceed 10 pages.
(8) The Respondent is by 26 May 2020 to file and serve an outline of submissions to be made at that hearing, with that outline not to exceed 10 pages.
(9) There be liberty to the parties to apply.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. |
