Federal Court of Australia

Booth v Kadir Kaya (No 2) [2020] FCA 1330

ORDERS

THE COURT NOTES THAT:

1.    The confirmed control order relates to the respondent, Kadir Kaya.

2.    The Court is satisfied on the balance of probabilities that:

(a)    for the purpose of s 104.4(1)(c)(iv) of the Criminal Code, the respondent has been convicted in Australia of an offence relating to terrorism, 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;

(b)    each of the obligations, prohibitions and restrictions to be imposed on the respondent by the confirmed control order is reasonably necessary, and reasonably appropriate and adapted, for the purposes of s 104.4(1)(d)(i), (ii) and (iii) of the Criminal Code.

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 obligations, prohibitions and restrictions imposed on the Respondent by this confirmed control order are those set out in Annexure A to these Orders.

2.    The confirmed control order is in force until and including 28 May 2021.

3.    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.

ANNEXURE A

1.    Control 1

1.1.    You are required to remain at:

1.1.1.    34 Mapleton Boulevard, Melton South, in the State of Victoria; or

1.1.2.    25 Moffatt Street, St Albans, in the State of Victoria;

(the specified premises),

between the hours of 1:30 am and 5:30 am local time each day (the curfew period) from the day on which this Confirmed 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 every Monday between 7.00 am and 7.00 pm local time at Melton Police Station, 243 Station Road, Melton, Victoria.

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 that Control 2.1 has been reinstituted if COVID19 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 confirmed 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 confirmed 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 confirmed 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 confirmed 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, except for the purpose of completing a Certificate III training program with Foresite Training or otherwise except as approved in writing by the AFP Superintendent.

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 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:

i.    Mr and Mrs Mehmet and Sultan Kaya;

ii.    Mr Bulent Kaya and Rukiye Kaya and their children;

iii.    Mr and Ms Osman and Mefaret Kaya and their children;

iv.    Mr and Mrs Yusuf and Gulsum Tanrikulu and their children;

v.    Mr and Mrs Mustafa and Dondu Bozkurt;

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

d.    any of the following specified individuals:

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

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

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

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

v.    Oussama BENBRIKA (Date of birth: 14 February 1995);

vi.    Farhad RASOOLI (Date of birth: 5 December 1986);

vii.    Matthew SMITH aka Abdul MATEEN (Date of birth: 20 June 1985);

viii.    Naseem Abdul R VAN HERWAARDE (Date of birth: 13 August 1979);

ix.    Deniz HASAN (Date of birth: 7 November 1994);

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; and

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.

f.    if you become aware that the 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 12 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 Messenger

f.    Snapchat

g.    KIK

h.    iCall

i.    WeTalk

j.    Lync2013

k.    Nimbuzz Messenger

l.    Whistle Phone

m.    Talkatone

n.    Discord

o.    Google Duo

p.    MagicApp

q.    Signal Private Messenger

r.    Zoiper IAX SIP VOIP Softphone

s.    Beejive

t.    Fring

u.    JaJah

v.    Line2

w.    Talkatone

x.     Truphone

y.    Twitter

z.    Yahoo

aa.    ICQ

ab.    Google Talk

ac.    MSN Messenger

ad.    AIM

ae.    Yahoo Messenger

af.    Packet8

ag.    Google Hangouts

ah.    TikTok

ai.    Wickr, and

aj.    Zoom.

16.2.    In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any gaming applications or software that connects to other users or servers, via the internet or Local Area Network (LAN).

16.3.    In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, Skype, except for the following purposes, and subject to the requirements in Controls 16.4, 16.5 and 16.6:

a.    contacting your 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;

b.    contacting a police officer for the purpose of reporting in accordance with Control 2;

c.    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 legal representative or other person in accordance with Control 16.3, you must provide to an AFP Superintendent:

a.    the username and password for the Skype account you will be using to make that contact, unless you have previously provided the username and password you will be using to make that contact to an AFP Superintendent in compliance with Control 16.3 and that username and password have not changed.

b.    the Skype username of the person you will be contacting, unless you have previously provided the Skype username of the person you will be contacting to an AFP Superintendent in compliance with Control 16.3 and that username has not changed.

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

16.6.    In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any internet based messaging service, including any software, mobile application or hardware.

16.7.    Controls 16.1 to 16.6 do not prohibit access to or use of a website which includes an ‘instant chat’ function that allows a visitor to the website to send messages to, and receive messages from, the website host solely for the purpose of obtaining or providing customer service.

16.8.    You are permitted to access Facebook and Instagram (whether accessed through a website or an application) on the permitted mobile phone.

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 single computer that has been provided to you by the AFP for you to access and use at any one time (permitted computer) and your use of a permitted computer is subject to the following condition:

a.    if you change the password for a permitted computer, you must provide the new password to the AFP Superintendent, or a police officer acting under the AFP Superintendent’s direction, if you are requested to do so by the AFP Superintendent or the police officer.

b.    at any time a police officer from the AFP or Victoria Police requests, you must present a permitted computer for inspection, repair, service or replacement as required.

19.2.    You are prohibited from accessing or using, or causing any person to access or use on your behalf, any tablet device other than a single tablet device that has been approved in writing by an AFP Superintendent for you to access or use at any one time (permitted tablet device) and your use of a permitted tablet device is subject to the following conditions:

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

b.    if you change the password for a permitted tablet device, you must provide the new password to the AFP Superintendent, or a police officer acting under the AFP Superintendent’s direction, if you are requested to do so by the AFP Superintendent or the police officer.

19.3.    To request approval under Control 19.2 you must:

a.    submit a written request to the AFP Superintendent which nominates the 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 tablet device.

19.4.    You are permitted to access Facebook and Instagram (whether accessed through a website or an application) on the permitted computer.

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 requested 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, 8, 11.1.b.

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 or 11.1b 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.    A request for an exemption in respect of Control 8 must be made three business days before the material time and date.

21.8.    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 Confirmed 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 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 the time and date at which you wish to be in the prohibited area and/or 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 intend to purchase, rent or drive any vehicle which exceeds a gross vehicle mass of 4.5 tonne;

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.

REASONS FOR JUDGMENT

WHITE J:

1    On 28 May 2020, acting under s 104.4 of the Criminal Code which is the Schedule to the Criminal Code Act 1995 (Cth), the Court made an Interim Control Order (ICO) in relation to the respondent (Mr Kaya): Booth v Kadir Kaya [2020] FCA 764.

2    On 24 July 2020, the applicant (Ms Booth) elected, under s 104.12A of the Criminal Code, to confirm the order.

3    The Court had fixed 31 August 2020 as the date for the Confirmation Hearing so as to allow the parties sufficient time in which to complete the preparatory steps for what was then contemplated to be a contested hearing.

4    However, on the morning of 31 August 2020, the parties reached agreement that the ICO should be confirmed, albeit with some variations. After receiving the evidence upon which Ms Booth relied, and hearing submissions, I made an order confirming the ICO with the variations proposed by the parties (subject to one modification). Both parties agreed that an order of this kind could properly be made pursuant to s 104.14(7)(b) of the Criminal Code. I said that I would publish reasons for the order later. Those reasons follow.

Background

5    At the hearing, Ms Booth relied upon the affidavits she had made on 5 May and 24 July 2020 respectively. In addition, in relation to the proof of formal matters, she relied upon the affidavit of Mr Denman made 27 August 2020. The parties also provided a substantial Statement of Agreed Facts which I received pursuant to s 191 of the Evidence Act 1995 (Cth). In the face of objections from Mr Kaya, Ms Booth had agreed that certain portions of her affidavits should be received for limited purposes only. I have had regard to those limitations on the agreed use.

6    Given the parties’ agreement to the confirmation of the ICO, it is not necessary to record the factual background in any detail. For part of that background, it is sufficient to repeat verbatim the summary which I gave in the reasons for the making of the ICO.

7    On 22 February 2019, Mr Kaya was sentenced in the Supreme Court of Victoria for the offence of preparing for incursion into a foreign country for the purpose of engaging in hostile activities in contravention of ss 11.2A and 119.4(1) of the Criminal Code. He was sentenced to imprisonment for four years (after allowance for his plea of guilty) and a non-parole period of three years was fixed. As Mr Kaya had been in custody since his arrest on 10 May 2016, the term of his imprisonment has expired. He was released from custody on 8 May 2020.

8    Mr Kaya committed the offence with five others. The Crown case was that between 22 October 2015 and 10 May 2016 the group had agreed to, and did, engage in conduct in Australia preparatory to one or more of them entering the Philippines with intent to encourage or join with others there in conduct aimed at overthrowing the Government of the Southern Philippines by force or violence. The Crown alleged that the motivation for the agreement was to enable the Southern Philippines ultimately to be governed by Islamic law, sometimes known as Sharia law. Their plan was that one of the group, Mr Cerantonio, would enter the Philippines to encourage persons of the Islamic faith to carry out action directed at achieving, by force or violence, the overthrow of the Government of the Southern Philippines. The Crown alleged that it was only Mr Cerantonio who was to be actually involved in the encouragement of others to attempt that overthrow but there was no firm plan as to how Mr Cerantonio was to achieve that goal.

9    By reason of the cancellation of passports or the refusal of the Australian Government to issue or reissue passports, none of the group was able to leave Australia lawfully. In that circumstance, they agreed to acquire a boat and depart from Australia in Northern Queensland by covert means so as to travel to the Philippines.

10    Unknown to the group, their activities had been closely monitored by the Australian Federal Police (AFP), and the members of the group other than the applicant’s brother (Murat Kaya) were arrested in Northern Queensland before they were able to leave Australia. The sentencing Judge, Croucher J in the Supreme Court of Victoria, described the plan of the group as foredoomed to failure, saying that the ill-suited vessel the group had purchased and their lack of serious boating experience made it hard to imagine that they would have made it very far past the breakers off the far north of Queensland coast. The plan does seem to have had a certain hapless quality about it, but that does not make Mr Kaya’s conduct any less serious.

11    Ms Booth has been a member of the Australian Federal Police (AFP) for 20 years. She now holds the rank of Commander. During her time with the AFP, Ms Booth has acquired significant knowledge and experience in the investigation of crime generally but with specific reference to counter terrorism policing.

12    In seeking the confirmation of the ICO, Ms Booth relies upon a number of matters, including:

(a)    her knowledge of Islamic State and of Islamist militant groups;

(b)    her knowledge of threats of domestic terrorism;

(c)    the prospect, based on previous experience, of recidivism by some of those who have been convicted of terrorism offences;

(d)    the behaviour of Mr Kaya which culminated in his arrest on 10 May 2016 and conviction on 22 February 2019; and

(e)    the continuing influences to which Mr Kaya may be subject, including from members of his family and his associates.

13    Ms Booth has concluded that Mr Kaya poses a risk to the community of committing, supporting or facilitating a terrorist act in Australia or overseas, or supporting or facilitating the engagement in a hostile activity in foreign country. As indicated by his consent to the confirmation of the ICO, Mr Kaya did not ultimately seek to contest that opinion of Ms Booth nor to make submissions about the nature and extent of the risk to which she deposed.

Statutory provisions

14    Section 104.14 of the Criminal Code provides the alternatives available to the Court on a confirmation hearing. It is s 104.14(7) which is relevant presently. It provides:

(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.

15    Mr Kaya’s initial position was that the matters about which the Court must be satisfied at a confirmation hearing differ from those about which it must be satisfied in order to make an ICO. For the reasons which follow, I do not consider that submission to be correct.

16    Section 104.4(1) requires that the Court be satisfied of four matters before making an ICO. It 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.

17    It is subs (1)(c) and (d) which are pertinent presently. Subsection (1)(c) contains seven internal alternatives. It was common ground that subs (1)(c)(iv) was satisfied presently because Mr Kaya has been convicted in Australia of an offence relating to terrorism or a terrorist act.

18    Section 104.4(1)(d) requires the Court to be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the ICO is reasonably necessary, and reasonably appropriate and adapted, for the purpose of achieving at least one of the stated objects.

19    Mr Kaya submitted that in order to confirm the ICO, it was necessary for the Court to be satisfied of the s 104.4(1)(c) element but not the s 104.4(1)(d) element.

20    However, the Court must continue to be satisfied about each of these matters in order to confirm the ICO. So much is made evident by s 104.16(1) which provides (relevantly):

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

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

…

(Emphasis added)

21    I have considered the matter on that basis.

Consideration

22    The effect of s 104.14(1A)(c) of the Criminal Code is that the Court must be satisfied of certain matters (commonly referred to as the “formalities”), namely:

(a)    the ICO was served on Mr Kaya personally by an AFP member;

(b)    the AFP member informed Mr Kaya of the matters specified in s 104.12(1)(b);

(c)    the AFP member ensured that Mr Kaya understood the information provided to him;

(d)    an AFP member has served Mr Kaya personally with a copy of Ms Booth’s election to confirm the ICO; and

(e)    a copy of the documents provided to the Minister under s 104.2(3)(aa) and to Court under s 104.3(d), has been provided to Mr Kaya.

23    It was not in issue on the confirmation hearing that there had been compliance with these formalities.

24    Given that the Court was previously satisfied that an ICO was appropriate, that the Court was satisfied that each of the obligations, prohibitions and restrictions contained in the ICO was reasonably necessary and reasonably appropriate and adapted for a s 104.4(1)(d) purpose, that the parties have agreed that the ICO should be confirmed (subject to some variations), and that each party has been represented by counsel including senior counsel, I consider that it is not necessary to state in detail the reasons why I am satisfied on the s 104.4(1)(c) and (d) elements presently. For the same reasons it is not necessary to discuss each of the controls and limitations in any detail.

25    The Court was not provided with evidence of Mr Kaya’s behaviour between his release from prison on 8 May 2020 and the making of the ICO on 28 May 2020. Nor was the Court provided with evidence of his behaviour in the period of three months since the making of the ICO. Nevertheless, Ms Booth’s affidavits and the Statement of Agreed Facts satisfy me that each of the obligations, prohibitions and restrictions to be imposed on Mr Kaya by the confirmed control order is reasonably necessary, and reasonably appropriate and adapted, for the purposes specified in s 104.4(1)(d)(i), (ii) and (iii) of the Criminal Code.

26    It is, however, appropriate to refer to the curfew condition contained in Control 1. In the varied form agreed by the parties, it imposed a curfew condition requiring that Mr Kaya be at one of two specified addresses between the hours of 1.30 am and 5.30 am each day. It provided that Mr Kaya could be at the second of the two addresses only if he had given written notice at least 24 hours before the intended stay. Ms Booth deposed that Control 1 (together with a reporting condition in Control 2) will assist the police to monitor Mr Kaya’s whereabouts and activities. However, neither Ms Booth’s affidavit nor the submissions of her counsel indicate that it is necessary for written notice to be given 24 hours in advance of Mr Kaya staying at the second alternate address. The circumstances in which he may wish to stay at that address suggest that a decision to stay at it may be made at short notice and well within the contemplated period of 24 hours. They indicate that this particular element of the Control has the potential to be unduly restrictive. In my view, the purpose sought to be achieved by Ms Booth will be satisfied by the requirement that Mr Kaya may be at one or other of the two nominated addresses during the curfew hours. For this reason, I modified the form of Control 1 proposed by the parties.

27    Control 8 in the ICO prohibits Mr Kaya from purchasing, renting or driving any vehicle which exceeds a gross vehicle mass of 4.5 tonnes. It is directed to ensuring that Mr Kaya does not have control of large vehicle of a kind which experience indicates has been used in previous terrorists acts. The variation agreed by the parties will allow Mr Kaya to complete a training course with a particular training provider or otherwise as approved in writing by the AFP Superintendent. It is an appropriate qualification on Control 8.

28    The remaining variations to the Controls in the ICO proposed by the parties are of a formal or consequential kind. It is not necessary to address them separately.

29    For these reasons, I was satisfied that it was appropriate to confirm the ICO with the variations on which the parties had agreed (subject to the one modification mentioned above).

30    The confirmed control order is to remain in force until and including 28 May 2021.

Associate:

Dated:    16 September 2020