FEDERAL COURT OF AUSTRALIA

Booth v Dacre (No 2) [2020] FCA 816

File number:

VID 297 of 2020

Judge:

WHITE J

Date of judgment:

3 June 2020

Catchwords:

CRIMINAL LAW – application for confirmation of interim control order pursuant to s 104.14 of the Criminal Code contained in the Schedule to the Criminal Code Act 1995 (Cth) – whether the obligations, prohibitions and restrictions are reasonably necessary and reasonably appropriate and adapted.

Held: control order confirmed subject to some variations.

Legislation:

Crimes Act 1914 (Cth) s 3

Criminal Code Act 1995 (Cth) ss 11.29, 104.4, 104.12A, 104.14, 119.4(1)

Federal Court of Australia Act 1976 (Cth) s 37AF

Cases cited:

Booth v Dacre [2020] FCA 751

Date of hearing:

3 June 2020

Registry:

Victoria

Division:

General Division

National Practice Area:

Federal Crime and Related Proceedings

Category:

Catchwords

Number of paragraphs:

25

Counsel for the Applicant:

Ms C Fitzgerald

Solicitor for the Applicant:

Australian Government Solicitor

Counsel for the Respondent:

Mr A Brand

Solicitor for the Respondent:

Slades & Parsons Criminal Law

ORDERS

VID 297 of 2020

BETWEEN:

SANDRA BOOTH

Applicant

AND:

PAUL JAMES DACRE

Respondent

JUDGE:

WHITE J

DATE OF ORDER:

3 June 2020

Endorsement pursuant to r 41.06 of the Federal Court Rules 2011 (Cth)

To: Paul James Dacre

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

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

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

THE COURT NOTES THAT:

1.    The Applicant does not rely on the first sentence at the top of page 57 of Ms Booth’s affidavit of 5 May 2020.

2.    It is satisfied on balance of probabilities that the Respondent had been convicted in Australia of an offence relating to terrorism, namely, the offence of preparing for an incursion into a foreign country for the purpose of engaging in hostile activities, in contravention of ss 11.29 and 119.4(1) of the Criminal Code in the Schedule to the Criminal Code Act 1995 (Cth).

3.    It is satisfied on the balance or probabilities that each of the obligations, prohibitions and restrictions to be imposed on the Respondent by the order is reasonably necessary, and reasonably appropriate and adapted for the purpose of:

(a)    protecting the public from a terrorist act;

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

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

4.    This order is directed to the Respondent, Paul James Dacre.

THE COURT ORDERS THAT:

1.    The obligations, prohibitions and restrictions imposed on the Respondent by this confirmed control order are those set out in Schedule 1 to this order.

2.    The order will be in force until midnight on 14 May 2021.

3.    The Respondent’s lawyer may attend the office of the Australian Federal Police in Melbourne at 383 LaTrobe Street, Melbourne, Victoria between 9 am and 4 pm Monday to Friday in order to obtain a copy of this confirmed control order.

4.    Being satisfied that non-publication orders and suppression orders are appropriate, in order to prevent prejudice to the proper administration of justice or to protect the safety of any person, until further order, there be no disclosure by publication or otherwise of:

(a)    the residential address of the Respondent contained in:

(i)    paragraph [31] of the affidavit of Sandra Booth made on 5 May 2020 (the Booth Affidavit);

(ii)    Control 1.1 in Annexure SB-01 to the Booth Affidavit;

(iii)    Control 1.1 in the Interim Control Order (ICO) made on 14 May 2020;

(iv)    Control 1.1 in Annexure A to the varied ICO made on 15 May 2020; and

(v)    Control 1.1 in Schedule 1 to this order.

(b)    The name of the police station and the address contained in:

(i)    Control 2.2 in Annexure SB-01 to the Booth Affidavit;

(ii)    Control 2.2 in the ICO made on 14 May 2020;

(iii)    Control 2.2 in Annexure A to the varied ICO made on 15 May 2020; and

(iv)    Control 2.2 in Schedule 1 to this order.

(c)    the names and, when shown, the dates of birth and aliases of associates of the Respondent, contained in:

(i)    Controls 11.1(c)(vi) to 11.1(c)(x) and 16.3(a) of Annexure A to the ICO made on 14 May 2020;

(ii)    paragraphs [6.3.3], [6.3.4], [8.3] and [11] of Annexure B to the ICO made on 14 May 2020;

(iii)    Controls 11.1(c)(vi) to 11.1(c)(x) and 16.3(a) in Annexure A to the varied ICO made on 15 May 2020;

(iv)    Controls 11.1(c)(vi) to 11.1(c)(x) and 16.3(a) in Annexure SB-01 to the Booth Affidavit;

(v)    Controls 11.1(c)(vi) to 11.1(c)(x) and 16.3(a) in Schedule 1 to this order;

(vi)    paragraphs [20], [27], [33.1]-[33.3] and [75.1]-[75.7]; footnotes 116, 118-119, 129-130, 136-137, 139-141 and 144; and Annexures OO, QQ, SS, TT, UU, VV to Annexure SB-03 to the Booth Affidavit; and

(vii)    Page 61 being the list containing the descriptions of Annexures CC, EE, KK, MM, OO, SS, TT, UU and VV;

(viii)    paragraphs [6.3.3], [6.3.4], [8.3] and [11] of Annexure SB-06 to the Booth Affidavit;

(d)    The whole of the content of Annexures II, JJ, KK, LL, MM, NN and RR to Annexure SB-03 to the Booth Affidavit.

5.    Order 1 does not prevent disclosure of the information to and between the following people:

(a)    the presiding Judge and necessary staff of the Court;

(b)    officers and employees of agencies which are members of the Joint Terrorism Team, and legal representatives of those agencies;

(c)    the Respondent and his legal representatives; and

(d)    Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)).

6.    These non-publication and suppression orders operate concurrently with the orders made under s 37AF of the Federal Court of Australia Act 1976 (Cth) on 14 and 15 May 2020.

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

SCHEDULE 1

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 an AFP Superintendent

(the specified premises),

between the hours of 12:00am 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 restricted as a consequence of the COVID-19 pandemic, you are required to report to a police officer by Skype each week on Monday 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 between 7.00 am and 7.00 pm local time at [REDACTED].

2.3.    The 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 attempting 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.    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, 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, a 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; or

i.    broadcast on Australian free to air television;

j.    on Australian pay television;

k.    shown in a commercial movie cinema;

l.    on one of the following streaming services: Netflix; STAN; ABC iView; or 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 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, a ‘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.    Control 11

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: 13 July 1994);

ii.    Antonio GRANATA (Date of birth: 10 November 1990);

iii.    Shayden THORNE (Date of birth: 3 February 1988);

iv.    Murat KAYA (Date of birth: 14 February 1991);

v.    Robert CERANTONIO (Date of birth: 28 January 1985);

vi.    [REDACTED];

vii.    [REDACTED];

viii.    [REDACTED];

ix.    [REDACTED];

x.    [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 a 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, and

kk.    Wickr.

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, 16.8 and 16.9:

a.    contacting your child [REDACTED], her mother [REDACTED], your mother [REDACTED], your father [REDACTED], your stepfather [REDACTED] and your brother [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 this 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:

a.    Zoom;

b.    Class Dojo;

c.    Showbie; and

d.    Google Classroom,

except for the following purposes, and subject to the requirements in Controls 16.6, 16.7, 16.8 and 16.9:

a.    Facilitating and supervising your children’s contact with their school teachers and teachers’ aids;

b.    Discussing your children’s participation in online lessons with your children’s school teachers and teachers’ aids;

c.    Facilitating and supervising your children’s contact with other children.

16.6.    You are prohibited from using any computer other than a home computer in accordance with Controls 19.1, 19.2 and 19.3 to access or use Zoom, Class Dojo, Showbie and Google Classroom in accordance with Control 16.5.

16.7.    At least 24 hours prior to accessing or each of Zoom, Class Dojo, Showbie and Google Classroom in accordance with Control 16.5, you must provide to an AFP Superintendent:

a.    the username and password for the Zoom, Class Dojo, Showbie or Google Classroom 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 16.5 and that username and password have not changed.

b.    provide any information requested by or on behalf of the AFP Superintendent in relation to the person you will be contacting using Zoom, Class Dojo, Showbie or Google Classroom, unless you have previously provided that information to an AFP Superintendent in compliance with this Control 16.7 and information has not changed.

16.8.    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.

16.9.    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.

16.10.    Controls 16.1 to 16.9 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 service 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.    Control 19

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.    a single computer that has been provided to you by the AFP for you to access and use at any one time (permitted computer), subject to the condition in Control 19.2; and

b.    a single computer that has been approved in writing by an AFP Superintendent for you to access or use at any one time (home computer), for the purposes in Control 19.3 and subject to the condition in Control 19.2.

19.2.    Your use of a permitted computer and a home computer is subject to the following condition:

a.    if you change the password for a permitted computer or a home 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.

19.3.    You are prohibited from accessing or using, or causing any person to access or use on your behalf, a home computer, except for the following purpose and subject to the requirement in Control 19.2:

a.    Accessing or using, or causing any person to access or use on your behalf Zoom, Class Dojo, Showbie or Google Classroom for the purpose of facilitating and supervising your children’s contact with their school teachers and teachers’ aids in accordance with Controls 16.5 and 16.6;

b.    Accessing or using, or causing any person to access or use on your behalf Zoom, Class Dojo, Showbie or Google Classroom for the purpose of discussing your children’s participation in online lessons with your children’s school teachers and teachers’ aids in accordance with Controls 16.5 and 16.6;

c.    Accessing or using, or causing any person to access or use on your behalf Zoom, Class Dojo, Showbie or Google Classroom for the purpose of facilitating and supervising your children’s contact with other children in accordance with Controls 16.5 and 16.6.

19.4.    To request approval under Control 19.1.b you must:

a.    submit a written request to the AFP Superintendent which nominates a computer; and

b.    provide the password to that computer and any other information requested by or on behalf of the AFP Superintendent in relation to, or for the purpose of, identifying and accessing, a nominated computer.

19.5.    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.

19.6.    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.    Control 20

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, 3.1, 16 and 19.

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 to 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

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

1    This judgment concerns the confirmation of an Interim Control Order (ICO) made pursuant to s 104.4 of the Criminal Code contained in the Schedule to the Criminal Code Act 1995 (Cth).

2    On 14 May 2020, I made an ICO in respect of the respondent, Mr Dacre. My reasons for making that order are published as Booth v Dacre [2020] FCA 751. This judgment should be read in conjunction with those reasons.

3    On 15 May 2020, at the request of both parties, I varied the ICO.

4    Ms Booth, the senior AFP member who made the request for the ICO, has given written notification in the manner required by s 104.12A of the Criminal Code that she has elected to confirm the ICO as varied.

5    Accordingly, the question for the Court’s determination now is whether the ICO as varied should be confirmed.

6    Unlike the hearing of the request for the making of the ICO on 14 May 2020 which was interlocutory, today’s hearing is one for the making of a final order. On such a hearing, the Court must take judicial notice of the fact that the original request for the ICO was made in its particular terms (s 104.14(3A)). Further, the Court may only take action on this hearing on evidence adduced and submissions made under s 104.14(1) in relation to the confirmation of the order (s 104.14(3A)(b)).

7    The orders which the Court may make on a confirmation hearing are specified in s104.14(6) and (7). The Court may declare the ICO to be void if satisfied that there were no grounds on which the order could have been made (subs (6)). Subsection (7) provides for the principal alternatives available to the Court:

(7)    Otherwise, the court may:

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

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

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

Note:    If the court confirms the interim control order, the court must make a new order under section 104.16.

8    Mr Dacre was represented by his solicitor at the hearing on 14 May 2020 of the request for the making of the ICO. He did not oppose the making of the ICO in the terms sought by Ms Booth. Mr Dacre is also represented by his solicitor at today’s hearing and, subject to some matters, does not oppose the ICO being confirmed in its current terms.

9    For the purposes of today’s confirmation hearing, I have had regard to the affidavit Ms Booth made on 5 May 2020, the affidavit of Mr Payton made on 18 May 2020, and the affidavit of Ms Darmos made on 1 June 2020. Both Mr Payton and Ms Darmos are members of the AFP.

10    Mr Dacre did not ask the Court to receive any evidence.

11    I am satisfied that there has been compliance with the requirements of s 104.12A(2). I remain satisfied of the elements for the making of an ICO contained in s 104.4(1)(a)-(c). My reasons for being satisfied about those matters are the same as given in the published reasons of 14 May 2020.

12    I have reviewed the consideration of the requirements in s104.4(1)(d), namely, the requirement that the Court be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions sought to be imposed is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act, or for 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    Control 4 precludes Mr Dacre from leaving Australia and Control 3 has the effect, amongst other things, of precluding him from leaving the State of Victoria without the consent of the AFP superintendent. Control 1 requires Mr Dacre to be at his nominated place of residence each day between the hours of 12 midnight and 6 am.

14    Control 2 requires Mr Dacre to report twice weekly to a nominated police station between the hours of 7 am and 7 pm. The principal purpose of the reporting condition is to enable some monitoring by the police of compliance with the controls just mentioned and to provide some protection against the risk of Mr Dacre absconding. However, on my assessment of the materials provided by Ms Booth, they do not point to any matter suggesting a significant risk of absconding in the present case. On the contrary, a number of matters point against such a risk being significant. These include Mr Dacre’s seemingly stable domestic circumstances, Mr Dacre’s recognition of the wrongfulness of his conduct, his stated intention not to associate with any of his co-accuseds, the view of the sentencing judge that Mr Dacre has good prospects of rehabilitation, Mr Dacre’s insights into his own behaviour and state of mind, his denouncement of support for organisations such as ISIS, and his positive engagement in the Community Integration and Support Program (CISP) conducted by Victorian Prisons. I also note that the psychologist who assessed Mr Dacre on 25 April 2020 concluded:

In light of Mr Dacre’s current attitudes and behaviours, his sustained period of moderate Islamic practice as seen in custody and identified risk contributing and mitigating factors, he is considered to be a Moderate-Low risk of reoffending. There is no indication that this risk involves Mr Dacre engaging in acts of violence domestically. His risk pertains to the promotion of extremist attitudes.

15    It is also pertinent that the Australian Security Intelligence Organisation (ASIO) informed the Department of Home Affairs on 27 March 2020 that it assessed it as being unlikely that Mr Dacre currently adheres to an Islamic extremist ideology supportive of politically motivated violence and assessed it as unlikely that Mr Dacre intends to engage in, support, or facilitate politically motivated violence (or any other activities of security concerns) on his release from prison.

16    In my view, all these matters suggest that the risk of Mr Dacre absconding is not high, and that a requirement for twice weekly reporting to the nominated police station is unnecessary. To an extent, that impression is confirmed by the interim arrangements for the twice weekly reporting by Skype in place during the subsistence of the COVID-19 pandemic.

17    Accordingly, I will vary the ICO to provide for once weekly reporting, both by Skype and then, once the COVID-19 pandemic restrictions are removed, in person.

18    I also had concerns about whether Control 9 may inhibit Mr Dacre in obtaining paid work. I have raised this with the applicant’s counsel and invited submissions on the issue from Mr Dacre’s solicitor.

19    I take into account that, on his solicitor’s present instructions, Mr Dacre is looking to engage in study, rather than paid employment, and that he does not seek any variation to Control 9. Accordingly, I will not vary Control 9.

20    Control 16 prohibits Mr Dacre 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”. I have been concerned that that control may of itself inhibit unreasonably Mr Dacre’s ability to obtain or engage in forms of paid work.

21    Although there is no immediate prospect of him doing so and of there being any such inhibition, allowance should be made, in my view, for the prospect that his circumstances may change over the 12 month term of the control order.

22    Accordingly, I consider it appropriate to vary Control 21.1 so as to include Control 16 as one of the controls in respect of which Mr Dacre can seek an exemption from the AFP superintendent. My intention, as indicated, is to allow for the possibility that, if circumstances change, there be a mechanism by which, reasonably informally, an exemption might be granted, rather than having to make allowance for some application to the Court to achieve the same effect.

23    Otherwise, the controls in the ICO will be confirmed.

24    I indicate formally that I am satisfied on the balance of probabilities that Mr Dacre has been convicted in Australia of an offence relating to terrorism for the purposes of s 104.4(1)(c)(iv), and that, subject to the ICO being varied in the manner which I have just outlined, each of the obligations, prohibitions and restrictions contained in it is reasonably necessary and reasonably appropriate and adapted for the purposes set out in s 104.4(1)(d).

25    There will be orders to that effect.

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.

Associate:

Dated:    12 June 2020