FEDERAL COURT OF AUSTRALIA

Booth v Kaya (No 2) [2020] FCA 1119

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 104.14(7)(b) of the Criminal Code, being the Schedule to the Criminal Code Act 1995 (Cth), the interim control order made in relation to the respondent on 22 January 2020 is confirmed with variations as set out in red in the Annexure A to these Orders.

2.    The confirmed control order relates to the respondent, Murat Kaya.

3.    The Court is satisfied on the balance of probabilities that, for the purpose of s 104.4(1)(c)(iv) of the Criminal Code, the respondent has been convicted in Australia of an offence relating to terrorism, namely engaging in conduct in preparation for incursions into foreign countries for the purpose of engaging in hostile activities contrary to s 119.4(1) of the Criminal Code by virtue of s 11.2A of the Criminal Code.

4.    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 confirmed control order is reasonably necessary, and reasonably appropriate and adapted, for the purposes of s 104.4(1)(d)(i), (ii) and (iii) of the Criminal Code.

5.    The confirmed control order is in force until and including 21 January 2021.

6.    The respondent’s lawyer may attend the AFP Melbourne office at 383 La Trobe Street, Melbourne between 9 am to 4 pm, Monday to Friday in order to obtain a copy of these Orders.

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

REASONS FOR JUDGMENT

(delivered ex tempore, revised from transcript)

ANASTASSIOU J:

1    Before the court is an application for the confirmation of an interim control order made in respect of the respondent pursuant to s 104.4 of the Criminal Code Act 1995 (Cth). I made the interim control order on 22 January 2020 and published reasons: Booth v Kaya [2020] FCA 25. The terms of the proposed confirmed control order have been agreed between the parties.

2    Before an interim control order may be confirmed, the court must be satisfied that the requirements of ss 104.12 and 104.12A of the Criminal Code have been complied with as provided for by s 104.14(1A). I am satisfied that these requirements have been satisfied.

3    In particular, in satisfaction of s 104.12 an Australian Federal Police (AFP) member served the interim control order personally on the respondent, at the same time the AFP member informed the respondent of the matters set out in s 104.12(1)(b) and the respondent indicated that he understood those matters. In satisfaction of s 104.12A the applicant elected to confirm the control order on 17 June 2020. An AFP member has served personally on the respondent, at least 48 hours prior to this confirmation hearing, notification of the applicant’s election to confirm the interim control order.

4    At the confirmation hearing the applicant relied on all evidence relied on at the interim control hearing, further evidence filed in the court book filed 18 June 2020, and the agreed facts in the affidavit of service made by Jason Powell in respect to the election to confirm the interim control order. Those documents and evidence enable the respondent, who is represented by competent counsel, to understand and respond to the facts, matters and circumstances which form the basis of the confirmation of the order. No objection was taken to the tender of that evidence. I have treated the evidence referred to as tendered in support of this application.

5    My Kaya did not consent to the confirmation of the interim control order, but did not oppose confirmation of the order. However, the form of the order in relation to the terms of the controls described in Annexure A was consented to by Mr Kaya.

6    For the reasons referred to above, I am satisfied that the interim control order should be confirmed. Accordingly, I will make the form of the order agreed between the parties.

7    For completeness I note that for obvious reasons of privacy and security I have redacted from the publically published form of the orders the names of certain people with whom the respondent is able to have particular forms of contact, and the respondent’s address.

Associate:

Dated:    6 August 2020

ANNEXURE

ANNEXURE A

1.    Control 1

1.1.    You are required to remain at [redacted] the State of Victoria 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 1.30 am and 5.30 am 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.    You are required to report to a police officer every Monday and Thursday between 7am and 7pm via Skype. This must be via a Skype video call (audio-visual).

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) save and except on 26 March 2020 and 2 April 2020;

      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 is addressed in Controls 3.1a, 3.1b, 3.1c and 3.1d) and besides Gold Coast Airport on 26 March 2020 and 2 April 2020 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 3e) 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 save and except during the period 26 March 2020 until 2 April 2020.

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 except petrol contained in the petrol tank of a vehicle;

      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 any irritant matter in liquid, powder, gas, chemical form, dense smoke or substance, which is intended by the person having possession of the article or device to injure or menace a person;

      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.    apart from your brother, Kadir KAYA, any person incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility;

       b.    any person located in Turkey save and except the following persons subject to the provision of the phone numbers, addresses and dates of birth of those persons to the AFP Superintendent:

       -    [redacted];

       -    [redacted];

       -    [redacted];

       -    [redacted];

       c.    any person located in Iraq, Syria or the Philippines;

       d.    any of the following specified individuals:

       -    Paul DACRE (Date of birth: 6 July 1985);

       -    Antonino GRANATA (Date of birth: 10 November 1990);

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

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

12.    Control 12

12.1.    You are prohibited from accessing or using, any mobile telephone device other than the one mobile telephone device (the permitted mobile phone), and your use of the permitted mobile phone is subject to the following conditions:

      a.    before using the permitted mobile phone, you must present it to an AFP Superintendent (or a police officer specified in writing by an AFP Superintendent) for inspection;

      b.    before using the permitted mobile phone, you must advise an AFP Superintendent, in writing, of the following information: the International Mobile Equipment Identity number for the permitted mobile phone, the Integrated Circuit Card Identifier for the SIM card you will use with the permitted mobile phone, the telecommunication service provider which you will use with the permitted mobile phone, the password for the permitted mobile phone and the phone number to which the permitted mobile phone will be connected;

      c.    once you have advised an AFP Superintendent of the information required by paragraph 12.1b above, you must not change, remove, modify or disconnect or cause any other person to change, remove, modify or disconnect on your behalf (including any employee or person acting on behalf of a telecommunications service provider) the SIM card, telecommunication service provider or phone number connected to the permitted mobile phone; and

      d.    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’.

      e.    You must present the permitted mobile phone to police upon request.

12.2.    You are prohibited from causing another person to use or access the permitted mobile phone, with the exception of your daughter [redacted] who is permitted to use or access the permitted mobile phone.

12.3.    You are prohibited from causing or permitting another person to use or access any mobile telephone device on your behalf.

13.    Control 13

13.1.    You are prohibited from accessing or using, or causing any person to access or use on your behalf, any fixed or landline telephone service other than one service that has been approved in writing by an AFP Superintendent for you to access or use.

13.2.    To seek approval, you must:

      a.    submit a written request to an AFP Superintendent which nominates the 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 the 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.    Skype

     f.    Facebook

     g.    Facebook Messenger

     h.    Instagram

     i.    Snapchat

     j.    KIK

     k.    iCall

     l.    WeTalk

     m.    Lync2013

     n.    Nimbuzz Messenger

     o.    Whistle Phone

     p.    Talkatone

     q.    Discord

     r.    Google Duo

     s.    MagicApp

     t.    Signal Private Messenger

     u.    Zoiper IAX SIP VOIP Softphone

     v.    Beejive

     w.    Fring

     x.    JaJah

     y.    Line2

     z.    Talkatone

     aa.     Truphone

     ab.    Twitter

     ac.    Yahoo

     ad.    ICQ

     ae.    Google Talk

     af.    MSN Messenger

     ag.    AIM

     ah.    Yahoo Messenger

     ai.    Packet8

     aj.    Google Hangouts.

16.2.    In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any 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, any Voice Over Internet Protocol (VOIP) service, including any software, mobile application or hardware except Skype for the purpose of:

     16.3.1.    reporting to a police officer in accordance with Control 2.1;

     16.3.2.    contacting your legal representatives to obtain legal advice.

16.4.    At least 24 hours prior to accessing or using Skype for the purposes of contacting your legal representative or reporting to a police officer you must provide the AFP Superintendent:

     16.4.1.    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 and that username and password have not changed.

     16.4.2.    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 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 internet based messaging service, including any software, mobile application or hardware.

16.6.    Controls 16.1 to 16.4 does 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.

16.7.    Controls 16.1 to 16.5 do not prohibit you from accessing or using Microsoft Teams for the purpose of participating in any hearing in the Federal Court of Australia in proceeding VID 1377 of 2019.

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 Facebook or Instagram account other than:

     16.8.1.    the one Facebook account that has been approved in writing by an AFP Superintendent for you to use and access (the permitted Facebook account);

     16.8.2.    the one Instagram account that has been approved in writing by an AFP Superintendent for you to use and access (the permitted Instagram account).

16.9.    You are prohibited from deleting the permitted Facebook account or deleting any material posted to the permitted Facebook account without approval of the AFP Superintendent in writing.

16.10.    You are prohibited from deleting the permitted Instagram account or deleting any material posted to the permitted Instagram account without approval of the AFP Superintendent in writing.

16.11.    To seek approval of an AFP Superintendent to use and access a Facebook and/or Instagram account you must submit a written request and:

     16.11.1.    Nominate the Facebook and/or Instagram account; and

     16.11.2.    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.

16.12.    To seek approval of an AFP Superintendent to delete a permitted Facebook account or permitted Instagram account or delete any material posted to either of these accounts you must submit a written request and:

     16.12.1.    nominate the permitted Facebook and/or permitted Instagram account to be deleted; or

     16.12.2.    nominate the permitted Facebook and/or permitted Instagram account and identify the material posted to either of these accounts that you wish to delete and the reason why you wish to delete the material.

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.    the one service that has been approved in writing by an AFP Superintendent for you to access or use (the 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.    To seek approval of an AFP Superintendent you must submit a written request and:

       a.    nominate the internet service provider account;

       b.    nominate what devices you will connect to the internet service (including but not limited to any computer, televisions, and other smart devices); and

       c.    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 and devices.

17.3.    You are prohibited from allowing any other person to access or use the permitted internet service.

17.4.    You are prohibited from causing any other person to access or use on your behalf any other internet service.

17.5.    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 two accounts that have been approved in writing by an AFP Superintendent for you to access or use (the permitted email accounts).

18.2.    To seek approval of an AFP Superintendent you must submit a written request and:

       a.    nominate the email account(s); 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(s) which you will be accessing or using.

18.3.    You are prohibited from causing or permitting another person to use or access the permitted email accounts.

19.    Control 19

19.1.    You are prohibited from accessing or using any computer or tablet device other than a computer or tablet device that has been approved in writing by an AFP Superintendent for you to access or use (the permitted computer or tablet device) and your use of the permitted computer or tablet device is subject to the following conditions:

       a.    before using the permitted computer or tablet device, you must provide the password for the permitted computer or tablet device to the AFP Superintendent; and

       b.    if you change the password for the permitted computer or 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 19.1 you must:

       a.    submit a written request to the AFP Superintendent which nominates the computer or 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, the nominated computer or 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

21.1.    You may request the AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Controls 1.1,1.2, 1.3, 2.1, 2.2, 3.3.1.j., 8, 11.1.b and 16.

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 must be made three business days before the material time and date.

21.6.    The AFP Superintendent will convey their response to the request for an exemption no later than a day before the material time and date.

Interpretation

21.7.    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 Controls 1.1, 1.2 and 1.3 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 and 2.2 before the conclusion of the reporting period that is the subject of the request (and, if more than one reporting period is the subject of the request, the first of those reporting periods);

 iii.    in relation to a request for an exemption to the requirement in Control 3.1.j the time and date at which you wish to depart Victoria;

 iv.    in relation to a request for an exemption to the requirement in Control 8 the time and date at which you wish to carry out the specified activity;

 v.    in relation to a request for an exemption to the requirement in Control 11.1.b the time and date at which you wish to communicate with a person located in Turkey.

 vi.    in relation to a request for an exemption to the requirement in Control 16 – the time and date at which you wish to use the VOIP service.

Annexure 1

Annexure 2

Annexure 3

Annexure 4

Annexure 5