FEDERAL COURT OF AUSTRALIA

Read v Namoa [2021] FCA 1486

ORDERS

THE COURT ORDERS THAT:

Interim control order

1.    The Court hereby makes an interim control order pursuant to s 104.4 of the Criminal Code (Cth) in relation to Alo-Bridget Namoa in the terms set out in the Schedule to these orders.

ENDORSEMENT PURSUANT TO RULE 41.06

To: Alo-Bridget Namoa

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

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

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

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

SCHEDULE

1.    This Interim Control Order relates to the respondent, Alo-Bridget Namoa.

2.    The Court is satisfied on the balance of probabilities that, for the purpose of s 104.4(1)(c)(iv) of the Criminal Code (Cth), the respondent has been convicted in Australia of an offence relating to terrorism or a terrorist act, namely conspiring to do acts in preparation for, or planning, a terrorist act between 8 December 2015 and 25 January 2016 at Sydney, contrary to ss 11.5 and 101.6 of the Criminal Code.

3.    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 order is reasonably necessary, and reasonably appropriate and adapted, for the purposes of:

3.1.    protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Criminal Code); or

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

4.    The obligations, prohibitions and restrictions to be imposed on the respondent by this Interim Control Order are those set out in Annexure A to this Schedule.

5.    A summary of the grounds on which this Interim Control Order is made is set out in Annexure B to this Schedule.

6.    This Interim Control Order does not begin to be in force until it is served personally on the Respondent and the Respondent is released from custody.

7.    The Respondent may attend the Federal Court of Australia on 2 December 2021 at 9.00am for the Court to:

7.1.    confirm (with or without variation) this Interim Control Order;

7.2.    declare this Interim Control Order to be void; or

7.3.    revoke this Interim Control Order.

8.    If this Interim Control Order is confirmed, the confirmed control order is to be in force for 12 months after the day on which this Control Order is made.

9.    The respondent’s lawyer may attend the Australian Federal Police Sydney office at 110 Goulburn Street, Sydney, NSW 2000 between 9:00 am and 4:00 pm, Monday to Friday in order to obtain a copy of this Interim Control Order.

ANNEXURE A

1.    Control 1

1.1.    You are prohibited from residing at premises other than:

a.    [Address] (the specified premises); or

b.    such other premises notified by you to the AFP Superintendent 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 must 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.

1.3.    For abundant clarity, you are permitted to stay at any premises other than the specified premises for up to 21 consecutive days, but no more than this, without having to notify the AFP Superintendent.

1.4.    The prohibition in Control 1.1 and the requirement in Control 1.2 do not apply during any period in which you are admitted to hospital.

2.    Control 2

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

a.    accessing, viewing, acquiring, possessing or storing documents (including documents in electronic form) or electronic media 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;

unless that material is:

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

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.

b.    accessing, viewing, acquiring, possessing or storing documents (including documents in electronic form) or electronic media which depict or describe any:

i.    execution;

ii.    beheading;

iii.    suicide attack

iv.    bombing;

v.    terrorist attack;

vi.    propaganda or promotional material for a terrorist organisation within the meaning of s 102.1(1) of the Criminal Code (Cth); and

vii.    activities of, or associated with, any terrorist organisation within the meaning of s 102.1(1) of the Criminal Code (Cth),

unless that material is:

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

viii.    broadcast on Australian free to air television;

ix.    broadcast on Australian pay television;

x.    shown in a commercial movie cinema;

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

xii.    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.    collating, editing, copying, recording, producing or distributing documents (including documents in electronic form) or electronic media, or directing any person to collate, edit, copy, record, 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.    propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Criminal Code (Cth); and

x.    activities of, or associated with, a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code (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, firearm parts or ammunition within the meaning of s 4 of the Firearms Act 1996 (NSW);

b.    a ‘prohibited weapon’ within the meaning of s 4 of the Weapons Prohibition Act 1998 (NSW);

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 communicating or voluntarily associating with:

a.    any person incarcerated in any correctional facility, except:

i.    [Name]; and

ii.    Eliesa KAFOVALU (19/10/1989), but only so as to permit you to communicate with KAFOVALU in writing;

b.    any person known to you to be convicted of, or currently charged with, a ‘terrorism offence’ within the meaning of s 3(1) of the Crimes Act 1914 (Cth);

c.    any of the following specified individuals:

i.    Amnah RIMA (nee HAMZE) (date of birth: 08/09/1975)

ii.    Bassam HAMZY (date of birth: 03/01/1979);

iii.    Rose Honor KARROUM (date of birth: 29/06/1990);

iv.    Siaunofilalao KEPU (date of birth: 11/11/1998);

v.    Abir BAYDA (approximate date of birth: 14/11/1978).

6.    Control 6

6.1.    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 (the permitted mobile phone).

6.2.    Your access or use of the permitted mobile phone is subject to the following conditions:

a.    prior to using the permitted mobile phone an AFP Superintendent will provide you with the following information in writing:

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

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

iii.    the telecommunication service provider which you will use with the permitted mobile phone;

iv.    the password for the permitted mobile phone; and

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

b.    at any time an AFP Superintendent (or a police officer specified in writing by an AFP Superintendent) requests, you must present the permitted mobile phone for inspection and open any applications the AFP Superintendent or police officer directs you to open;

c.    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 provided by the AFP, the telecommunication service provider or the 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.

6.3.    For abundant clarity, Control 6.1 does not prohibit you from being present whilst other persons communicate using the ‘speaker’ function on another phone so long as:

a.    you do not participate in the communication; and

b.    you do not cause any person to participate in the communication on your behalf.

7.    Control 7

7.1.    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.

7.2.    If you agree to participate in such counselling or education you must advise an AFP Superintendent in writing that you have commenced the counselling or education and provide an AFP Superintendent the name and qualifications of the professional you have engaged.

8.    Exemptions requested by you

8.1.    You may request that the AFP Superintendent approve an exemption to the obligations, requirements or prohibitions specified in Controls 1-7 above.

8.2.    To request an exemption, you must:

a.    submit a written request to the AFP Superintendent which:

i.    explains the extent to which you seek to be exempted from the Control, and

ii.    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.

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

8.4.    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.

8.5.    A request for an exemption must be made before the material time and date.

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

9.    Exemption granted by the AFP with or without a request from you

9.1.    An AFP Superintendent may grant an exemption to the requirements or prohibitions specified in the Controls with your consent.

9.2.    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.

9.3.    You must comply with all 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.    Application of controls while in custody

10.1.    Controls 1-7 do not apply during any period in which you are held by or on behalf of any officer in a prison or remand centre of the Commonwealth, a State or a Territory.

10.2.    Controls 1-7 resume their application at the conclusion of any period referred to in Control 10.1.

11.    Interpretation

11.1.    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.    material time and date means:

i.    in relation to a request for an exemption to a Control that requires you to do an act – the time and date that you are required to do that act and propose not to do it;

ii.    in relation to a request for an exemption to a Control that prohibits you from doing an act – the time and date that you propose to do that act;

iii.    in relation to a request for an exemption to a Control that requires you to be present at an area or place – the time and date that you are required to be present at that area or place and propose not to be;

iv.    in relation to a request for an exemption to a Control that prohibits you from being present at an area or place – the time and date that you propose to be present at that area or place.

c.    password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device.

d.    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 Police Act 1990 (NSW).

ANNEXURE B

Offence relating to terrorism and a terrorist act

1.    On 5 October 2018, Alo-Bridget Namoa was found guilty, and subsequently convicted, of an offence contrary to ss 11.5(1) and 101.6(1) of the Criminal Code 1995 (Cth) for conspiring to do acts in preparation for a terrorist act (the conspiracy offence). The offence involved Namoa providing strong and express encouragement to Sameh Bayda, with whom she had participated in an Islamic ceremony of marriage, concerning a plan by Bayda to carry out an act of violence against non-Muslims.

2.    The offence for which Namoa was convicted related to terrorism and a terrorist act.

Ongoing risk factors

3.    By reason of the following matters, Namoa presents an ongoing risk of committing, supporting or facilitating a terrorist act.

3.1.    Namoa provided support and encouragement for the carrying out of a domestic terrorist act. In providing that support, Namoa identified the prospective victims as ‘kuffar’ (ie as legitimate targets for a violent attack) and encouraged Bayda to continue with the attack despite her understanding that he was having second thoughts. Namoa provided that support and encouragement notwithstanding she believed Bayda could, himself, be killed while carrying out the attack, such was her level of commitment to the cause.

3.2.    Namoa herself expressed a desire to commit a terrorist act, and possessed a knife wrapped in a Shahada flag in furtherance of her agreement with Bayda to do so.

3.3.    Namoa has a demonstrated susceptibility to the influence of others. She has shown very little resilience and a limited capacity to exercise independent and reliable judgement, even where those exerting influence are seeking to involve her in very obvious and serious wrong-doing. This is most clearly exemplified by her involvement in Bayda’s plan to commit a terrorist act.

3.4.    Namoa’s indoctrination into Islamic extremism had a profound effect on her. Most significantly, it led her to commit the offence referred to at [1] above. Even after being arrested and charged with that offence, during the First Period of Imprisonment, Namoa continued to characterise her circumstances through the lens of that ideology, for example by identifying the authorities as ‘oppressors’ and demonstrating a firmly held belief that the ‘kuffar’ should be put to death. She also continued to express support for the Islamic State and its ideology.

3.5.    Namoa did not simply have a passing or fleeting interest in Islamic extremism. Rather, it was an enduring one. Nor was she passive in her consumption of that ideology. Rather, she espoused it and encouraged others to adopt it, including her brother, well into the First Period of Imprisonment.

3.6.    Namoa’s radicalisation was also a product of her access to and consumption of extreme and violent material which she accessed online. At the time of her arrest for the terrorism-related charges in February 2016, Namoa’s phone contained an extensive amount of extremist material, including depictions of suicide bombings and executions (including by beheading) and literature advocating jihad martyrdom. Namoa has conceded that she was ‘fanatical’ and that she had been ‘immersed with all the propaganda’.

4.    Although there is no evidence Namoa accessed extremist material, contacted prohibited associates under her first control order, or expressed a desire to commit, support or facilitate a terrorist act, during the 8 months she spent in the community between December 2019 and July 2020, this must be viewed in light of the following matters:

4.1.    Namoa was, throughout this period, subject to the first control order, and should be taken to be aware that her conduct was being monitored. The first control order expressly prohibited her from accessing extremist material (control 6) and communicating or associating with identified persons or classes of persons.

4.2.    In the weeks and months after Namoa was released from prison on 22 December 2019, her phone was used:

4.2.1.    to acquire 3 photographs of persons (who the AFP believe include Namoa and her brother Esau) raising their right index finger, a gesture understood by Namoa to be an ISIS salute;

4.2.2.    to download and access an image of a flag depicting a sword logo with the Shahada, the Shahada symbol being:

4.2.2.1.    incorporated in the Islamic State flag; and

4.2.2.2.    printed on the flag found wrapped around a Tactical brand knife in Namoa’s handbag in January 2016, both of which items she had possessed pursuant to an agreement between her and Bayda to carry out a terrorist act;

4.2.3.    on a number of occasions in January, February and April 2020, to send text messages to her mother, sister and then husband describing and threatening violent acts, including to ‘shoot’, ‘stab’ and ‘kill’ people, ‘pour[] acid down [her sister’s] throat to teach her a lesson’, ‘burn [her sister’s] house down’, ‘fukn hurt someone’, ‘cave [her sister’s] fukn head in’, ‘pour acid down [another person’s] throat’, and ‘punch [her husband Arslan] in [th]e throat’.

4.3.    In May 2020, Namoa communicated with a woman whose husband has been convicted of foreign incursion-related offences. And over a 2 week period in June and July 2020, Namoa attempted to contact that woman a further 7 times.

4.4.    Namoa was for much of the time she spent in the community married to Arslan, who appears to have been a positive and supportive influence, but in November 2020 Namoa sought an Islamic divorce from him, and the two appear to have broken off all contact.

4.5.     Since July 2020, while on remand, Namoa has written to:

4.5.1.    persons who have been convicted of terrorism offences;

4.5.2.    the woman referred to at [4.3] above;

4.5.3.    two people who Namoa had been prohibited from communicating or associating with under the first control order.

4.6.    In a further letter while on remand, Namoa wrote that ‘there is no terrorism in this country’. In another, she wrote that although she ‘can’t speak [her] mind at the moment’, she ‘will one day … I say something and its taken out of context and make out like I’ve said something controversial that’s oh so damaging to the security of the country’. These statements demonstrate a lack of insight into the seriousness of her past offending and related conduct, which included her expressing support for terrorism and terrorist acts.

5.    Namoa admitted, in around September 2020, that she did not abandon her Islamic faith as she had claimed to various people around the time of her sentencing hearing and in her evidence before the sentencing judge. There is also evidence that her claims to have renounced Islam were at the behest of Bayda, which reinforces the concerns about her susceptibility to the influence of others.

6.    While the sentencing judge found that Namoa was genuine in her renunciation of fanatical beliefs and made other findings favourable to Namoa, those findings concerned Namoa’s beliefs and ideology at that point in time. To the extent the sentencing judge considered Namoa’s likely future behaviour and conduct, his Honour expressed a qualified opinion. Furthermore, the evidence referred to at [5], and Namoa’s more recent admission that she never abandoned her faith, were not before the sentencing judge.

7.    In view of the above matters, there is a real risk that upon her release from custody, and in the absence of appropriate obligations, prohibitions and restrictions, Namoa will either herself commit, or otherwise support or facilitate, a terrorist act.

8.    The obligations, prohibitions and restrictions set out in the proposed interim control orders are reasonably necessary, and reasonably appropriate and adapted, for the purpose of preventing a terrorist act or the provision of support for or the facilitation of such an act. They represent a substantially reduced intrusion upon Namoa’s liberty than was occasioned by the first control order. They will ensure that Namoa:

8.1.    is again provided with the opportunity to engage positively with the community (through employment, religious observation, counselling and education);

8.2.    is capable of being monitored by police during her reengagement with the community; and

8.3.    is prohibited from engaging in those behaviours, and being exposed to those influences, which may lead her to commit, provide support for or facilitate a terrorist act,

and thereby reduce the risks outlined above.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

BURLEY J:

1    This is an application by Superintendent Nicholas Read of the Australian Federal Police (AFP) for an interim control order in respect of Alo-Bridget Namoa pursuant to s 104.4 of the Criminal Code (Cth) (contained in the Schedule to the Criminal Code Act 1995 (Cth)).

2    On 5 October 2018, Ms Namoa and her co-offender Sameh Bayda, were found guilty by a jury of the offence of conspiring between 8 December 2015 and 25 January 2016 at Sydney and elsewhere to do acts in preparation for, or planning, a terrorist act, contrary to ss 11.5(1) and 101.6(1) of the Code (2015 offence). On 31 January 2019 a judge of the Supreme Court of New South Wales sentenced both to imprisonment. The term imposed upon Ms Namoa was three years and nine months commencing on 23 March 2016 and expiring on 22 December 2019: R v Bayda; R v Namoa (No 8) [2019] NSWSC 24 (Fagan J).

3    Prior to Ms Namoa’s release from imprisonment, Sandra Booth, a commander in the AFP, made an application to this court for a first interim control order, which was subsequently made on 19 December 2019: Booth v Namoa [2019] FCA 2213 (Rares J) (Booth No 1). That order was confirmed to apply without variation on 3 February 2020: Booth v Namoa (No 2) [2020] FCA 73 (Rares J) (Booth No 2).

4    On 22 December 2019, Ms Namoa was released from custody and on the same day she was served with the first interim control order.

5    On 25 July 2020, Ms Namoa was arrested and charged with six counts of contravening a control order and six counts of attempting to contravene a control order, contrary to ss 104.27 and 11.1 of the Code. She was refused bail and has been remanded in custody since her arrest (second period of imprisonment). Ms Namoa has pleaded guilty to some of these counts and the remainder have been withdrawn. She is due to be sentenced next Monday, 29 November 2021.

6    On 19 December 2020, the interim control order imposed made on 19 December 2019 expired.

7    There is a prospect that Ms Namoa’s sentence for the contraventions of the first interim control order will not exceed, or will not exceed by much, the time she has been remanded in custody to date, with the consequence that Ms Namoa’s release into the community may be imminent. It is for that reason that the present application has been made on an urgent basis.

8    There is a two stage process for an officer of the AFP to seek and obtain an interim control order within ss 104.3 and 104.4 of the Code. First, a “senior AFP member” must obtain the written consent of the AFP Minister who, at present, is the Honourable Karen Andrews MP. Secondly, the senior AFP member must provide to the Court the documents and information required by s 104.3. The Court may make an order but only if the particular requirements of s 104.4 of the Code, to which I shall return below, have been satisfied.

9    Superintendent Read has filed an extensive affidavit in support of the present application, which I am satisfied supplies the documents and information addressing all of the requirements of s 104.3 of the Code. He has filed submissions in support of the application and provided a draft interim control order, the terms of which have been considered by the legal representatives for Ms Namoa. Ms Namoa’s legal representatives, who appeared at the application today, have provided brief written submissions indicating that Ms Namoa does not oppose the grant of an interim control order. They have discussed the draft orders with the representatives of Superintendent Read and, after some limited refinements were made, accept that the terms proposed are substantially more limited than those made in the first control order.

10    For the reasons set out below, I am satisfied that it is appropriate for the interim control order to be made.

11    The four preconditions for the making of an interim control order are set out in s 104.4(1)(a)-(d). The first is that a “senior AFP member”, defined in s 100.1 as being an AFP member of the rank of Superintendent or above, has requested the order in accordance with s 104.3. Superintendent Read holds the requisite rank. His request is supported by an affidavit that conforms with the requirements of s 104.3. Most particularly, it includes the information that has been supplied to the Minister, an explanation as to why (and why not) each of the obligations, prohibitions or restrictions sought should be imposed upon Ms Namoa, the history of previous requests for interim control orders and a copy of the Minister’s consent.

12    The statement of facts relating to why the order should be made includes certain information about two individuals that Superintendent Read claims is confidential. He seeks a suppression order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) in order to protect the identity of those individuals. This involves the suppression of limited parts of annexures NR-03 and NR-07 of Superintendent Read’s affidavit and of the confidential submissions supplied in support of the suppression order. Having regard to the matters raised, I am satisfied that a suppression order in the form sought is appropriate.

13    The second precondition under s 104.4(1)(b) is that the Court has received and considered such further information (if any) as it requires. No such information has been required, and so this precondition is not operative.

14    The third precondition is that one of the seven alternatives set out in s 104.1(1)(c) be met. Superintendent Reid relies on subsection (iv), which requires that the Court be satisfied on the balance of probabilities, that Ms Namoa 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 s 100.1). In Booth No 1 at [12] and Booth No 2 at [18] the Court found that Ms Namoa had been convicted of an offence relating to terrorism and a terrorist act. In my view that is plainly correct: see also McCartney v EB [2019] FCA 183; 263 FCR 170 at [29]-[30] (Wigney J). As Superintendent Read submits, the 2015 offence involved conspiring to do acts in preparation for a terrorist act; Ms Namoa had agreed with and expressly supported her co-offender’s intention to carry out a terrorist act. The terrorist act was initially intended to be an attack on people in Sydney during the New Year’s Eve festivities on 31 December 2015, which Ms Namoa encouraged. The offence also involved Ms Namoa holding a knife and Islamic State flag on behalf of her co-offender. Ms Namoa herself expressed a desire to carry out a terrorist act. There is a clear connection between the offence for which Ms Namoa was convicted and terrorism and a terrorist act. I am comfortably satisfied that this requirement has been met.

15    The fourth precondition in s 104.4(1)(d) is that:

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.

16    Section 104.4(2) relevantly provides that for the purposes of s 104.4(1)(d), the Court must take into account, as a paramount consideration, the objects of Div 104. Section 104.1 provides:

104.1    Objects of this Division

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

(a)    protecting the public from a terrorist act;

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

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

17    Section 104.4(2) also relevantly provides, as an additional consideration, the impact of the control order obligations, prohibitions or restrictions on Ms Namoa’s circumstances, including financial and personal.

18    In Thomas v Mobray [2007] HCA 33; 233 CLR 307, Gleeson CJ explained the exercise involved in s 104.4(1)(d) as one involving proportionality (at [19]):

The requirement that a court consider whether each of the obligations imposed by a control order is both reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public was the subject of debate. A requirement of that kind would sometimes be described as a requirement of proportionality. Judgments about proportionality often require courts to evaluate considerations that are at least as imprecise as those involved in formulating a control order.

19    Justices Gummow and Crennan in the same case considered, at [99], in relation to each proposed obligation, prohibition and restriction:

….Section 104.4(1) requires in para (d) that each of these be measured against what is “reasonably necessary” and also against what is “reasonably appropriate and adapted” for attainment of the purpose of public protection from a terrorist act. This is weighed with the impact upon the circumstances of the person in question as a “balancing exercise” (s 104.4(2)).

20    The affidavit of Superintendent Read includes a summary of the grounds upon which the Superintendent considers that Ms Namoa presents an ongoing risk of committing, supporting or facilitating a terrorist act. The general context of the application arises from an ongoing and, in my view, justified concern explained by Superintendent Read that terrorist groups such as Islamic State remain active and have the potential to inspire terrorism around the globe.

21    More particularly, those grounds stem from the fact that Ms Namoa was found to have supported and encouraged an act of domestic terrorism in support of her extremist views of Islam, herself expressed a desire to commit a terrorist act and had possessed a knife wrapped in a Shahada flag in furtherance of her agreement with Mr Bayda to do so. In the weeks and months after her release from prison on 22 December 2019, Ms Namoa’s phone was used to obtain images of persons raising their right index finger, which is a gesture known to Ms Namoa as being an “ISIS salute”, and downloading an image of a flag depicting a sword logo with the Shahada symbol, which are known symbols used by the Islamic State. She has also sent numerous messages which include threats of extreme violence. Since July 2020, during her second period of imprisonment, Ms Namoa communicated with two persons who have been convicted of terrorism offences and two people with whom she had been prohibited from communicating or associating under the first interim control order. Furthermore, she admitted in about September 2020 that she had not abandoned her Islamic faith, as she had claimed in her evidence before the sentencing judge, and there is evidence to suggest that she did so at the behest of her co-accused. A more complete summary of the grounds on which the order is made are set out in Annexure B to the orders.

22    In Booth No 1, Rares J considered (at [28]) that there was at that time, December 2019, “still a real and reasonable risk that Ms Namoa remains a person about whom it is not possible conclusively to say that she is not at risk of relapsing to, or actually maintaining, the offending behaviours that led to her conviction, although…there are many positive indications that she has abandoned those behaviours”. One of those positive indications was Ms Namoa’s apparent reversion to Christianity: see [21]-[24]. His Honour also found that Ms Namoa “is a person who is vulnerable and, in the past, has succumbed to those vulnerabilities by adopting jihadist or fundamentalist beliefs and behaviours that resulted in her conviction” for the 2015 offence: see [31].

23    For the purposes of her bail application on 15 December 2020, Ms Namoa’s representatives obtained a report by Dr Richard Furst, forensic psychiatrist, dated 11 September 2020. He agreed with the assessment made by Rares J, emphasising “the unique circumstances of Ms Namoa’s offending, her emotional/intellectual vulnerabilities, her status as only one of only a handful of female terrorism-related offenders in the state of New South Wales and the relatively extreme nature of her previous interest in Jihadist/violent extremists images, propaganda and ideologies”.

24    Superintendent Read submits that at the time of making the first interim control order, there were indications that Ms Namoa may have been disengaging from the extremist ideology that was the catalyst for her offending and subsequent conduct while in custody. He submits that while that may continue to be the case, those indications must be treated with caution, having regard to Ms Namoa’s subsequent conduct, aspects of which I have summarised above. Superintendent Read submits that by engaging in that conduct, Ms Namoa has exposed herself to persons and material that have the capacity to have a radicalising influence on her, and that the risk of that occurring is neither remote nor fanciful having regard to the circumstances surrounding her conviction for the 2015 offence which involved her being highly influenced by a combination of Islamic State propaganda and persons with extremist views. I accept that submission.

25    I have considered each of the control orders proposed to be made. I consider that the obligations, prohibitions and restrictions set out are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act or preventing the provision of support for or the facilitation of a such an act. They represent a reduced intrusion upon Ms Namoa’s liberty than was occasioned by the first interim control order and they will ensure that she is provided with the opportunity to engage positively with the community, while at the same time being capable of being monitored by the police on a more limited basis and being prohibited from engaging in behaviour and being exposed to influences which may lead her to commit or provide support for a terrorist act.

Associate:

Dated:    26 November 2021