FEDERAL COURT OF AUSTRALIA

Booth v Granata [2020] FCA 768

ORDERS

THE COURT NOTES THAT the parties are to confer and to provide to my Chambers by 12 pm (SA Time) on Monday 1 June 2020 an agreed set of minutes giving effect to the Court’s judgment today and, in the event of disagreement about the order, to each provide their respective minutes on the matters in dispute, noting that the Court will resolve any remaining issue concerning the terms of the orders on the papers and will make orders in Chambers.

THE COURT ORDERS THAT:

1.    The matter is adjourned to a Case Management Hearing at 11:30 (AEST) on Tuesday 16 June 2020 for consideration of the orders reasonably necessary and reasonably appropriate and adapted for the confirmation hearing.

2.    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.

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

1    I am dealing with an application for an Interim Control Order (ICO) in respect of the respondent, Antonino Granata, under s 104.4 of the Criminal Code contained in the Schedule to the Criminal Code Act 1995 (Cth).

2    Between 22 October 2015 and 10 May 2016, Mr Granata, with five others, committed the offence of engaging in conduct in preparation for incursions into a foreign country for the purpose of engaging in hostile activities, contrary to ss 11.2A and 119.4(1) of the Criminal Code. The prosecution case, in brief, was that Mr Granata and his co-offenders had, between 22 October 2015 and 10 May 2016, agreed with each other to engage, and had engaged, in conduct with a view to entering the Philippines with the intention that one of their number would engage in conduct aimed at overthrowing the Government of the Southern Philippines by force or violence. The motivation of the group was to bring about a circumstance by which the Southern Philippines would be governed by Islamic law, otherwise known as Sharia law. Mr Granata and his co-offenders were arrested in Far North Queensland on 10 May 2016, having travelled there from Victoria towing a seven-metre boat. Their plan had been to depart Australia on the boat and to travel to the Philippines. Unknown to the group, they had been under police surveillance for some time before May 2016. The description of the group’s plan by Croucher J in the Victorian Supreme Court when sentencing the offenders suggests that the plan had a hapless quality about it.

3    Mr Granata and all but two of his co-offenders were sentenced for their offences on 22 February 2019. After a reduction for his plea of guilty, Mr Granata was sentenced to a term of imprisonment for four years with a non-parole period of three years. As Mr Granata had been in custody since his arrest on 10 May 2016, the sentence has now been completed and he was released from prison on 8 May 2020.

4    Ms Booth, the applicant, filed the application for the ICO on 6 May 2020 and, by the agreement of the parties, it was listed for hearing today.

5    The application for the ICO is supported by a substantial affidavit by Ms Booth and by an affidavit of Mr McDonald, a member of the Australian Federal Police (AFP). Ms Booth holds the rank of Commander in the AFP, with her substantive position being that of Manager, Counter Terrorism Operations South.

Statutory provisions

6    Section 104.4(1) of the Criminal Code 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.

7    As is apparent, the Court may make an ICO only if satisfied of four matters:

(a)    that the request for the ICO 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 is required (s 104.4(1)(b));

(c)    that at least one of the matters specified in subs (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).

8    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 a control order may be in force is 12 months from the making of the ICO (s 104.5(1)(f)), provided that the ICO is confirmed at a confirmation hearing conducted pursuant to s 104.4(14) of the Code.

9    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, which are 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. Section 104.4 also includes a requirement based on the age of the subject of the proposed ICO, but that is not applicable in Mr Granata’s case.

10    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 by, having regard to what is reasonably 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.

11    The terms of s 104.4(1)(d) reflect the objects of Div 104 stated in s 104.1:

104.1 Objects of this Division

The objects of this Division are to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for one or more of the following purposes:

 (a)    protecting the public from a terrorist act;

 (b)    preventing the provision of support for or the facilitation of a terrorist act;

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

12    The term “terrorist act” is defined in s 100.1 as follows:

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.

13    The effect of this definition was summarised by Gleeson CJ in Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at [8]:

[8]    The object of Div 104 is to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for the purpose of protecting the public from a terrorist act (s 104.1). The definition of terrorist act (s 100.1) requires three elements for an action or threat of action to be a terrorist act. First, the action must fall within a certain description, and must not be of a kind excluded by another description. The inclusory aspect of the definition is that the action must (to put it briefly) cause death, serious physical harm, or serious damage to property, endanger life, create a serious risk to public health or safety, or seriously interfere with or disrupt certain vital systems. The exclusory aspect of the definition excludes advocacy, protest, dissent or industrial action that is (to put it briefly) not intended to cause death or serious injury, or endanger life or public safety. The second necessary element is that the action is done, or the threat of action is made, with the intention of advancing a political, religious or ideological cause. The third necessary element is that the action is done, or the threat of action is made, with the intention of coercing, or influencing by intimidation (to put it briefly), a government, or of intimidating the public or a section of the public.

Matters of approach

14    The constitutionality of subdiv B of Div 104, in its former form, was confirmed in Thomas v Mowbray. The Court was then particularly concerned with the provision which is now located in subs (1)(d)(i). However, some of the Court’s reasons are equally applicable to subparas (ii) and (iii) in subs (1)(d). Gleeson CJ noted, at [22], that the Court “has to consider whether the relevant obligation, prohibition or restriction imposes a greater degree of restraint than the reasonable protection of the public requires”.

15    Gummow and Crennan JJ said at [92]:

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, and the facts and circumstances disclosed in the evidence on the particular application for an order …

16    Gummow and Crennan JJ also said at [99]:

… Section 104.4(1) requires in para (d) that each [proposed obligation, prohibition and restriction] 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)).

Consideration – general

17    Mr Granata does not oppose the making of an ICO in his case, but he does contend that not all of the particular controls sought by Ms Booth are reasonably necessary or reasonably appropriate and adapted for any of the s 104.4(1)(d) purposes. This means that particular attention will have to be given to the matters raised by Mr Granata. Although Mr Granata’s attitude to the making of the ICO does not relieve the Court from its statutory responsibility before making an ICO, it does facilitate the Court reaching the state of satisfaction on the balance of probabilities that the requirements for an ICO are established.

18    Before turning to the matters raised by Mr Granata, I mention the first three elements in s 104.4(1) about which the Court must be satisfied.

19    The matters specified in s 104.4(1)(a) are of a formal kind. 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.

20    In relation to s 104.4(1)(b), the Court has considered the further information provided by counsel for Ms Booth during the course of the submissions this morning.

21    In seeking the ICO in relation to Mr Granata, Ms Booth relies upon s 104.4(1)(c)(iv) or, s 104.4(1)(c)(vii). The question of whether the offence of which Mr Granata 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 [2020] FCA 25 and confirmed implicitly by his Honour in Booth v Thorne [2020] FCA 445. Mr Murat Kaya and Mr Thorne were each one of Mr Granata’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), although it appears that that element is also established on the evidence.

22    Given that Mr Granata accepts that an ICO is appropriate in his case, it is not necessary to dwell in detail on the matters which indicate that the making of an ICO is both reasonably necessary and reasonably appropriate and adapted to achieve the purposes specified in s 104.4(1)(d). I indicate, however, that those matters include Mr Granata’s offending conduct; the long period of time during which he engaged in that conduct, being from October 2015 to May 2016; the long period of time, dating back to 2013, during which he indicated significant interest in and apparent commitment to an extremist ideology; and his continued associations with some persons with respect to whom there are, on reasonable grounds, some security concerns.

23    The range of obligations, prohibitions and restrictions sought by Ms Booth in the ICO for Mr Granata is extensive.

24    It is understandable that Ms Booth seeks at this time a broad, ongoing suite of controls. As her counsel submitted, ss 104.11A(2)(b) and 104.14(7) do not permit any later variation of an ICO so as to increase the extent or range of the controls, only variation to remove one or more obligations, prohibitions or restrictions in the circumstances specified.

25    I note that, looked at generally, the obligations, prohibitions and restrictions sought by Ms Booth in relation to Mr Granata are similar to the obligations, prohibitions and restrictions in ICOs made previously by the Court in respect of Mr Granata’s co-offenders.

26    I accept the submission of both counsel that the controls sought should be regarded as part of an overall suite of conditions with the consequence that regard should not be had to each in isolation from the others. That said, I doubt that it would be appropriate to characterise the controls as having an integrated nature or a mutual interdependence. It is obvious that some of the controls are quite capable of operating independently of others.

27    I will address first the controls which Mr Granata contends are not appropriate.

Control 2 – the reporting condition

28    By Control 2, Ms Booth seeks a requirement that Mr Granata report at a nominated police station each Monday and Thursday between 7 am and 7 pm. Ms Booth recognises that a control to that effect is not appropriate during the continuance of the current Covid-19 pandemic because of the restriction placed by the Victorian Police on in-person reporting at police stations. Instead, while the Covid-19 restrictions remain in force, Ms Booth seeks a control which would require Mr Granata to report by Skype each week on Monday and Thursday between the hours of 7 am and 7 pm. Ms Booth contends that the twice-weekly reporting will assist police in monitoring Mr Granata’s whereabouts and in monitoring his activities. It is not clear how reporting twice weekly, as opposed to once each week, for which Mr Granata contends, will add greatly to the ability of the police to monitor his activities. Counsel’s submissions today seem to acknowledge that the real purpose of the control is to provide some fetter on Mr Granata’s ability to abscond and to monitor his continued presence in Melbourne. Such a purpose is consistent with the usual purpose of courts imposing a reporting condition, as, for example, as a condition of bail or as a condition of parole.

29    In my view, a number of the other controls sought by Ms Booth, including the curfew condition and the obligations as to the place of residence and restrictions on travel, reduce the risk of Mr Granata absconding in the present case. I take into account that there is an extent to which an obligation to report twice weekly involves some burden on the person subject to that obligation. That burden is likely to operate in Mr Granata’s case, having regard to his familial and probable work commitments.

30    It is pertinent, in my view, that Mr Granata has not been subject to a reporting requirement in the three weeks since his release from prison. Moreover, the arrangement necessarily made in the circumstances of the Covid-19 pandemic for him to report by Skype tends to undermine the necessity for him to be reporting personally with the frequency sought by Ms Booth. Considered as a whole, I am not satisfied that twice-weekly reporting is reasonably necessary for a s 104.4(1)(d) purpose.

31    Accordingly, I will order that Mr Granata report once each week at the nominated police station between 7 am and 7 pm.

Control 9 – notification of paid employment

32    By Control 9, Ms Booth seeks an order prohibiting Mr Granata from undertaking paid work, whether, as I understand it, by employment or in self-employment, without having first notified the AFP superintendent in writing. Ms Booth does not seek a condition that Mr Granata obtain the approval of the AFP superintendent, only for the provision of written notice in advance.

33    Ms Booth submits that the purpose of this control is to ensure that the AFP is aware of any paid work in which Mr Granata may engage which may equip him with the means to commit, support or facilitate a terrorist act or to support or facilitate hostile activities overseas or which may expose him to criminal or malign elements at certain specific workplaces where he may come under adverse influence.

34    Counsel for Mr Granata submits that this control is not reasonably necessary. It has the potential, he submits, to interfere with Mr Granata’s ability to obtain paid employment by delaying the time when he can commence paid work. Depending on the nature of the paid work which Mr Granata obtains, this limitation may not be very onerous. That would be particularly so if he engages in employment under a single ongoing contract of employment. However, as may be the case having regard to the nature of Mr Granata’s occupation, his employment or work may be intermittent, casual, or short term, in which case this control would become more burdensome. The burden involved, even in that circumstance, should not be overstated because, as counsel for Ms Booth pointed out, even a relatively short email to the AFP before commencing the work may be sufficient to discharge the requirement under the control. However, in my view, if, as Ms Booth’s submissions suggest, the purpose of the condition is to enable the AFP to have information as to the places at which Mr Granata is working and the identity of his employer and workmates, this could be achieved by a less stringent requirement, for example, a requirement that, on the AFP making a reasonable request, he inform the AFP where and with whom he has engaged or is engaging, in paid work and the nature of that work.

35    In my view, a control to that effect should be adequate and reasonably appropriate and adapted for the purpose. Accordingly, I will not impose Control 9 in the terms proposed by Ms Booth, but will give her the opportunity to put forward a control along the lines that I have just articulated.

Control 11 – communications and associations with particular persons

36    By Control 11, Ms Booth seeks an order prohibiting Mr Granata from communicating or voluntarily associating with people who are incarcerated, people in four specified countries and a number of specified individuals. Ms Booth seeks this prohibition in order to preclude Mr Granata from associating with persons of security concern and with persons who may have a radicalising influence over him. Given Mr Granata’s previous associations, Ms Booth contends that there is a risk that, if Mr Granata is able to associate with persons of this kind in the future, he may again be influenced to act in a way which will increase the risk that he will commit, support or facilitate a terrorist act and/or hostile activities.

37    Mr Granata does not oppose the imposition of a control to the effect sought but contends that he should not be precluded from associating and communicating with one of the persons specified by Ms Booth in the proposed ICO. That person is the person named in proposed Control 11.1(c)(vii). Mr Granata wishes to be able to continue associating with this person, as they have been good friends for approximately eight years, and in the past have often worked together. Counsel submits that there is a reasonable possibility that Mr Granata will be able to obtain work with or through this friend.

38    In seeking the control, Ms Booth relies upon three conversations which Mr Granata had with the person in question in 2014. I have reviewed the transcript of those conversations and can see that they provide some basis for Ms Booth’s concerns. However, nearly six years have now elapsed since those conversations. I note that, in at least some of them, it is Mr Granata who is taking the lead in discussions about topics of concern. I note that there is no evidence concerning the conduct of the person in question in the period since 2014 and I take into account that restrictions on association with this friend may impede Mr Granata’s ability to obtain paid work.

39    In all the circumstances, I am not satisfied that the control concerning the association with this person is appropriate and decline to make it.

Control 16 – technology platforms

40    By Control 16, Ms Booth seeks a prohibition on Mr Granata from accessing or using, or causing any person to access or use on his behalf, a large number of websites, applications and computer programs, referred to collectively as “the platforms”. Mr Granata does not oppose this condition but does seek that he be allowed to access three, namely, WhatsApp, Facebook Messenger and Facebook. He submits that these are commonly and widely used forms of social media as well as means of communicating with friends and family and communicating with respect to employment. I am willing to accept that that is so. However, just as these platforms can be used for benign purposes, so also can they be used for malign purposes. An absolute prohibition on the use of these platforms is one means by which the risk of Mr Granata using them for a malign purpose can be avoided.

41    I also take into account that WhatsApp is an encrypted platform so that monitoring of its use may be difficult. Use of a platform with encryption is one means by which Mr Granata could engage in activities which are unlawful and inappropriate without detection.

42    In my view, Ms Booth has shown that a prohibition on the use of WhatsApp is reasonably necessary or reasonably appropriate and adapted for the purpose of achieving one or other of the s 104.4(1)(d) effects.

43    I am concerned, however, about inhibiting Mr Granata’s prospects of obtaining employment, taking into account the prospect of him advertising his services via Facebook and Facebook Messenger. I accept that there may be a case for allowing Mr Granata to use those platforms, but only for employment related purposes, if that be practicable. Such a relaxation on the control may be appropriate if monitoring is available which would allow Mr Granata’s use of those platforms to be reviewed from time to time and if there were conditions which precluded him from making any deletion of entries or so as to disguise his use. The Court presently does not have information about those matters and so I am not willing to carve out from the control sought by Ms Booth use of Facebook Messenger and Facebook and the other platforms.

44    I indicate to the parties, however, that is a matter about which it would be appropriate for the Court to hear further evidence and to hear further submissions at the confirmation hearing.

45    Although Mr Granata initially opposed the making of a control in terms of proposed Control 16.2, ultimately, he did not press that. I am satisfied that a control in the proposed terms of Control 16.2 is reasonably necessary and reasonably appropriate and adapted for the s 104.4(1)(d) purpose.

46    Mr Granata also opposes the control sought in proposed Control 16.3, relating to his access or use of Skype, Zoom or Facetime. My conclusion about proposed Control 16.3 is that it is reasonably necessary and reasonably appropriate and adapted for the s 104.4(1)(d) purpose. However, this is a matter about which I would invite further submissions and further evidence at the confirmation hearing, because of my concern in particular that the restriction should not inhibit Mr Granata’s ability to obtain employment. It is unclear to me whether the control would have that effect, presently. It is something which should be the subject of further consideration by both parties.

Control 17 – the restriction on use of the internet service

47    By Control 17, Ms Booth seeks a control which would prohibit Mr Granata from accessing or using, or causing any person to access or use on his behalf, any internet service other than a single service approved in writing by an AFP superintendent for his access or use and a television connected to an internet service at the premises specified, subject to the existing controls. Mr Granata sought in addition that he be permitted to use a single cellular mobile and 4G data service approved by the AFP. This was a matter of submissions and not a matter which was the subject of evidence.

48    On the basis of the submissions, I am not satisfied that the carve-out proposed by Mr Granata would diminish the extent of the control proposed by Ms Booth. I am satisfied, otherwise, that proposed Control 17 is appropriate, having regard to the potential for an internet service to be used for an inappropriate or unlawful purpose of the kind contemplated by s 104.4(1).

49    Accordingly, I propose to make a control in the terms proposed by Ms Booth, but again invite the parties to make further submissions and to provide further evidence about this, if necessary, at the confirmation hearing.

The remaining controls

50    Having dealt with the controls which were in dispute, I now turn to those which were not disputed. I do not propose to discuss each individually. Having regard, in particular, to the attitude adopted by Mr Granata and the content of Ms Booth’s affidavit, I am satisfied that each of these controls (the “undisputed controls”) are reasonably necessary and reasonably appropriate and adapted for the s 104.4(1)(d) purposes and will make them part of the ICO.

Associate:

Dated:    10 June 2020