Federal Court of Australia

Booth v Dacre [2021] FCA 796

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 104.14(4) 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 12 May 2021 is confirmed with the variation set out in red in the Annexure to these Orders.

2.    The confirmed control order is in force until and including 11 May 2022.

3.    The respondent’s lawyer may attend the Australian Federal Police at 383 Latrobe Street, Melbourne, Victoria between 9 am to 4 pm, Monday to Friday in order to obtain a copy of these Orders.

THE COURT NOTES THAT:

4.    It is satisfied on the balance of probabilities that the respondent has been convicted in Australia of an offence relating to terrorism (s 104(1)(c)(iv) of the Criminal Code).

5.    It is satisfied on the balance of probabilities that the respondent has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country (s 104(1)(c)(vii) of the Criminal Code).

6.    It is satisfied on the balance of 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 (s 104.4(1)(d)(i) of the Criminal Code);

(b)    preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Criminal Code); and

(c)    preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (s 104(1)(d)(iii) of the Criminal Code).

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

ANNEXURE TO ORDERS

1.    Control 1

1.1.    You are prohibited from permanently residing at an address other than XXXXXXXX in the State of Victoria (the specified premises), or staying at any premises other than the specified premises for more than 21 consecutive days, except in accordance with Control 1.2.

1.2.    If you decide to permanently leave the specified premises, or stay at any premises other than the specified premises for more than 21 consecutive days, you are required to notify the AFP Superintendent of your new address or the address you will be staying at in writing three business days prior to departing the specified premises. If at the time of leaving the specified premises you did not foresee that you would be staying at any premises other than the specified premises for more than 21 consecutive days and did not notify the AFP Superintendent that you would be doing so, you are required to notify the AFP Superintendent as soon as you become aware that you will be staying at any premises other than the specified premises for more than 21 consecutive days.

2.    Control 2

2.1.    You are prohibited from carrying out the following activities (including in respect of your work or occupation), namely:

a.    Accessing or viewing documents (including documents in electronic form) or electronic media, or attempting to access or view documents (including documents in electronic form) or electronic media, which relate to any of the following:

i.    explosives, explosive devices, initiation systems, firing devices or conducted electrical weapons;

ii.    firearms, ammunition or knives;

iii.    anti-surveillance or counter surveillance;

iv.    execution;

v.    beheading;

vi.    suicide attack;

vii.    bombing;

viii.    terrorist attack;

ix.    Islamic State;

x.    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); and

xi.    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:

i.    published by a ‘constituent body’ of the Australian Press Council; or

ii.    broadcast on Australian free to air television;

iii.    broadcast on Australian pay television;

iv.    shown in a commercial movie cinema;

v.    broadcast on a free to air or paid streaming service; or

vi.    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.

3.    Control 3

3.1.    You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely:

a.    Possessing, storing, recording or copying documents (including documents in electronic form) or electronic media, or attempting to possess or store documents (including documents in electronic form) or electronic media, or directing any person to possess, store, record or copy documents on your behalf, which relate to any of the following:

i.    explosives, explosive devices, initiation systems or firing devices;

ii.    firearms, ammunition or knives;

iii.    anti-surveillance or counter surveillance;

iv.    execution;

v.    beheading;

vi.    suicide attack;

vii.    bombing;

viii.    terrorist attack;

ix.    Islamic State;

x.    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); and

xi.    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).

b.    Collating, editing, producing or distributing documents (including documents in electronic form) or electronic media, or directing any person to collate, edit, produce or distribute documents (including documents in electronic form) or electronic media, relating to:

i.    explosives, explosive devices, initiation systems or firing devices;

ii.    firearms, ammunition or knives;

iii.    anti-surveillance or counter surveillance;

iv.    execution;

v.    beheading;

vi.    suicide attack;

vii.    bombing;

viii.    terrorist attack;

ix.    Islamic State;

x.    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); and

xi.    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).

4.    Control 4

4.1.    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; and

i.    anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

5.    Control 5

5.1.    You are prohibited from knowingly (i) communicating or voluntarily associating with, or (ii) attempting to communicate or associate with, directly or indirectly through a third party:

a.    any person incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility;

b.    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);

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

6.    Control 6

6.1.    You are prohibited from accessing or using, any mobile telephone device and mobile telephone SIM card other than the one mobile telephone device and mobile telephone SIM card provided by the AFP (permitted mobile phone).

6.2.    Prior to receiving the permitted mobile phone the AFP Superintendent will provide you with the following information in writing:

a.    the International Mobile Equipment Identity number for the permitted mobile phone;

b.    the Integrated Circuit Card Identifier for the SIM card you will use with the permitted mobile phone,

c.    the telecommunication service provider which you will use with the permitted mobile phone,

d.    the password for the permitted mobile phone; and

e.    the phone number to which the permitted mobile phone will be connected;

6.3.    You must not tamper with, damage or destroy any component of the permitted mobile phone or any equipment necessary for the operation of the permitted mobile phone, or direct, cause or permit another person to do any of those things.

6.4.    You are prohibited from deleting any platforms, programs or software stored on or accessible from the permitted mobile phone, unless you have installed that platform, program or software yourself. You are prohibited from utilising encryption, obfuscation or encryption services to prevent examination of data and where applicable are required to provide any password/s or access data to facilitate the examination of the permitted mobile phone.

6.5.    At any time the AFP Superintendent (or a police officer from the AFP or State or Territory Police) requests, you must present the permitted mobile phone for inspection and open any applications the AFP Superintendent or police officer directs you to open.

6.6.    You must not change, remove, modify or disconnect or direct 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.

6.7.    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 the AFP Superintendent or the police officer.

6.8.    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 twelve hours after becoming so aware.

6.9.    You are prohibited from causing or permitting another person to use or access the permitted mobile phone, except in the following circumstances:

a.    in case of an emergency; and

b.    when you are conducting a telephone call in loudspeaker mode or through Bluetooth, or when you are conducting a video call, provided you initiate or answer the telephone call and are a participant in the conversation.

6.10.    If the emergency use exception in control 6.9.a is enlivened, you are required to notify the AFP Superintendent as soon as possible after the emergency and:

a.    provide sufficient information to the AFP Superintendent to identify the ‘other person’ who accessed or used the permitted or any other mobile phone;

b.    inform the AFP Superintendent of the date(s), time(s) and any phone number(s) called;

c.    explain the nature of the emergency that required you to cause or permit the other person to access or use the permitted mobile phone or any other mobile phone; and

d.    provide any other information requested by, or on behalf of, the AFP Superintendent.

7.    Control 7

7.1.    You are prohibited from accessing or using 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); and

b.    computers comprising machines publicly available for self-service use (self-service machines), including but not limited to a self-service checkout in a supermarket/store, an automated teller machine (ATM), a global positioning system (GPS) device and self-service ordering kiosks in fast food restaurants, provided that your access and use of any such self-service machine is limited to the machine’s intended use and does not involve using it to browse the internet or send electronic messages unrelated to the business to which it relates

7.2.    Prior to using the permitted computer, the AFP Superintendent will provide you with the following information in writing:

a.    make and model of the permitted computer;

b.    the serial number of the permitted computer; and

c.    any password associated with the permitted computer.

7.3.    You must not tamper with, damage or destroy any component of the permitted computer or any equipment necessary for the operation of the permitted computer, or direct, cause or permit another person to do any of those things.

7.4.    You are prohibited from deleting any platforms, programs or software stored on or accessible from the permitted computer unless you have installed the platform, program or software yourself, or partitioning any drive. You are also prohibited from utilising encryption, obfuscation or encryption services to prevent examination of data and where applicable are required to provide any password/s or access data to facilitate the examination of the permitted computer.

7.5.    At any time the AFP Superintendent (or a police officer from the AFP or State or Territory Police) requests, you must present the permitted computer for inspection and open any applications the AFP Superintendent or police officer directs you to open.

7.6.    If you change the password for the 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.

7.7.    You are prohibited from causing or permitting any other person to use or access on your behalf the permitted computer.

8.    Control 8

8.1.    You are prohibited from accessing, installing or using, or causing any person to access, install or use on your behalf:

a.    any social media services, Voice Over Internet Protocol (VOIP) services, audiovisual, voice and/or multimedia session over internet protocol networks; or

b.    any internet based messaging service, virtualisation software or encrypted storage services where that service or software is designed to, or which purports to, disguise or conceal any function of any application, including incognito, ‘hidden’ or ‘private’ mode;

(collectively, platforms), other in accordance with Control 8.3 or with APF approval under 8.4.

8.2.    Control 8.1 does not prohibit you:

a.    accessing or using the platforms installed on the permitted mobile phone and the permitted computer (i) present at the time these are provided to you by the AFP, (ii) which are subsequently installed by the AFP or (iii) with the AFP’s approval in accordance with Control 8.4;

b.    installing updates to the platforms in Control 8.1 recommended by the makers of the platform.

8.3.    You may request approval to access, install or use other platforms from the AFP by submitting a written request to the AFP Superintendent which nominates the platform you wish to access, install or use.

8.4.    Permission to use the nominated platform may be granted, subject to conditions and may be amended or revoked by the AFP Superintendent. Any conditions, amended conditions or revocation will be provided to you by the AFP Superintendent in writing.

8.5.    You are prohibited from accessing or using:

a.    A virtual private network (VPN) service;

b.    The TOR network; and

c.    Any Darknet services (denoted by “onion” top level domain suffix).

9.    Control 9

9.1.    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.

9.2.    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.

10.    Exemption request by you

10.1.    You may request the AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Controls 1.1, 6.1, 7.1.a and 8.1.

10.2.    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;

b.    provide any other information requested by, or on behalf of, the AFP Superintendent for the purposes of determining whether to approve the exemption.

10.3.    The AFP Superintendent may grant an exemption subject to conditions specified in writing.

10.4.    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.

10.5.    If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused.

11.    Exemption granted by the AFP without a request from you

11.1.    An AFP Superintendent may grant an exemption, initiated by the AFP, to the requirements or prohibitions specified in the Controls with your consent.

11.2.    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.

11.3.    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.

12.    Interpretation

12.1.    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).

REASONS FOR JUDGMENT

ANDERSON J:

1    On 12 May 2021, this Court made an interim control order (ICO) in respect of the Respondent under s 104.4 of the Criminal Code Act 1995 (Cth) (Criminal Code).

2    On 8 July 2021, the Court conducted a hearing pursuant to s 104.14 of the Criminal Code to determine whether the ICO should be confirmed (confirmation hearing).

3    The Applicant seeks confirmation of the ICO, and for the confirmed order to be in force for a period of 12 months from the date the ICO was made, being from 12 May 2021 to 11 May 2022.

4    The Respondent has informed the Applicant that confirmation of the ICO is not contested, and the Applicant’s evidence is not contested. The affidavit of Commander Sandra Booth sworn 3 May 2021 (Booth Affidavit) was read without objection and the deponent was not required for cross-examination.

Background

5    By way of background, the Applicant made the following submissions in respect of the making of the ICO. Those submissions provide relevant context for the purposes of these reasons for judgment.

6    In respect to the Respondent’s past conduct, the Applicant submits that the evidence establishes:

(a)    the Respondent’s attempt (by agreement with his co-offenders) to travel to the Southern Philippines (where a number of Islamist militant groups operated) with the intention of his co-offender, Mr Cerantonio, engaging in hostile activity, despite the cancellation of his passport by the Minister on 27 February 2015;

(b)    the Respondent’s security awareness, demonstrated during the course of the investigation;

(c)    the Respondent’s demonstrated support for Islamic State and extremist ideology supportive of violence; and

(d)    the Respondent’s susceptibility to the influence of others who espouse extremist ideology, as demonstrated by his susceptibility to the influence of Mr Cerantonio.

7    I accept the Applicant’s submissions in respect to what the evidence establishes in respect of the Respondent’s past conduct.

8    The Applicant submits that, while in custody, the Respondent claimed to have renounced his extremist beliefs and support for ISIS in interviews with a Corrections Victoria psychologist, Dr Mischel, and in a letter he wrote to the Commonwealth Attorney-General. The Applicant submits that such assertions must be treated with a high degree of caution, in view of:

(a)    the Respondent’s previous demonstrated commitment to an extreme and violent Islamic ideology;

(b)    the asserted renunciation having arisen at a time when it served the Respondent’s interests to distance himself from previously held views, namely in the context of his application for parole in 2019; and

(c)    the evidence outlined below concerning the Respondent’s conduct in custody and subsequent to his release from custody.

9    I accept the Applicant’s submissions that, on the evidence, such assertions by the Respondent must be treated with a high degree of caution.

10    The Applicant submits that, while in custody, the evidence establishes that the Respondent:

(a)    demonstrated limited capacity to identify extremist ideology and those who support such ideology;

(b)    associated with numerous persons of security concern on an ongoing basis whilst in custody, including by:

(i)    maintaining his association with some of his co-offenders;

(ii)    associating with others charged with, or convicted of, terrorist offences; and

(iii)    receiving visits, and having phone calls, with several individuals whose passports have been cancelled due to security concerns assessed by ASIO, who have renounced Australian citizenship, or who are otherwise of security concern because there is some indication that they adhere to an extremist ideology.

11    I accept the Applicant’s submissions as to what is disclosed on the evidence whilst the Respondent was in custody as set out above.

12    The Applicant submits that, since the Respondent was released from custody, the evidence establishes that he has:

(a)    remained committed to some extremist views;

(b)    self-reportedly ceased his support for ISIS, but only because it failed to fulfil the prophecy of forming the Caliphate;

(c)    made comments indicating a casual attitude towards violence;

(d)    commented on “Reddit” posts relating to convicted terrorists;

(e)    demonstrated a lack of insight into the factors that led to his offending; and

(f)    demonstrated security awareness and awareness of police monitoring.

13    I accept the Applicant’s submissions as to what the evidence establishes since the Respondent was released from custody as set out above.

14    The Applicant submits that there is no evidence that the Respondent has entirely resiled from the extremist ideology that led to his criminal conviction. Commander Booth considers it unlikely that the Respondent has disengaged from this ideology in the 12 months since his release from custody: Booth Affidavit, [101]. I accept the Applicant’s submissions in this regard, and I accept the opinion of Commander Booth, that it is unlikely that the Respondent has disengaged from this ideology in the 12 months since his release from custody.

15    The Applicant submits that Commander Booth has provided an explanation for each of the proposed controls and why such controls should be imposed in her affidavit at [125]-[144].

Procedural requirements for confirmation of the ICO

16    Before the Court may proceed to the confirmation hearing, it must be satisfied that the requirements of s 104.12 (service, explanation and notification of an interim control order) and s 104.12A (election to confirm the order) have been complied with: Criminal Code, s 104.14(1A).

17    Those requirements have been satisfied in this case as follows.

18    First, in satisfaction of s 104.12, on 15 May 2021, an Australian Federal Police (AFP) member served the ICO 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) by reading him the document titled “notification and explanation of an interim control order”. After reading the documents, the Respondent indicated that he understood that document and did not have any questions: Affidavit of Angela Grace Winnett sworn 17 May 2021.

19    Second, in satisfaction of s 104.12A, on 1 June 2021, the Applicant elected to confirm the ICO: Notification of Election to Confirm Interim Control Order dated 1 June 2021. An AFP member served personally on the Respondent at least 48 hours before the confirmation hearing:

(a)    a copy of a notification of the Applicant’s election to confirm the ICO;

(b)    a copy of the Booth Affidavit, including the documents mentioned in ss 104.2(3)(aa) and 104.3(d) of the Criminal Code;

(c)    a copy of the affidavit of Angela Winnett sworn 17 May 2021 confirming service of the ICO on the Respondent; and

(d)    a copy of the Applicant’s submissions filed 1 July 2021.

20    There has been no objection made on behalf of the Respondent to the confirmation of the ICO, and the Court previously made an ICO on the basis it was satisfied of the matters in ss 104.4(1)(c) and (d). The Applicant submitted that the Court should remain satisfied of those matters, and confirm the ICO with variations to the controls that have been agreed between the parties under s 104.14. Those variations have been agreed subsequent to the making of the ICO on 12 May 2021.

21    On 6 July 2021, the Respondent’s solicitors sent the Respondent’s submissions to my Chambers. Those submissions stated that:

(a)    The Respondent does not oppose confirmation of the ICO made on 12 May 2021 with the subsequent variations set out in the Annexure to the Short Minutes of Order filed by the Applicant.

(b)    The Respondent did not wish to make submissions about the Applicant’s evidence and the Applicant’s evidence could be read without objection.

(c)    The Respondent did not wish to cross-examine Commander Booth.

(d)    The Respondent did not wish to call any evidence.

Disposition

22    Having regard to the evidence and submissions filed by the Applicant and the Respondent, I am satisfied that the ICO made in relation to the Respondent on 12 May 2021 should be confirmed with the variation proposed by the Applicant. I will make the orders sought by the Applicant.

23    For completeness, I note that, for obvious reasons of privacy and security, I have redacted the Respondent’s address from the publically published form of the orders.

Associate:

Dated:    13 July 2021