Federal Court of Australia

Booth v Abdirahman-Khalif [2021] FCA 1651

ORDERS

THE COURT ORDERS THAT:

Control Order

1.    Pursuant to s 104.14(7)(c) 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 4 May 2021 is confirmed. The terms of the confirmed control order are set out in the Annexure to these Orders.

2.    The confirmed control order relates to the respondent, Zainab Abdirahman-Khalif.

3.    The Court is satisfied on the balance of probabilities that the respondent has been convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Criminal Code).

4.    The Court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the respondent by the confirmed control order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:

4.1    protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Criminal Code); and

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

5.    The confirmed control order is in force until and including 4 May 2022.

6.    The respondent’s lawyer may attend the Adelaide office of the Australian Federal Police at 55 Currie Street, Adelaide SA between 9 am to 4 pm, Monday to Friday, to obtain a copy of these Orders.

Endorsement pursuant to Rule 41.06

To: Zainab Abdirahman-Khalif

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.

ANNEXURE

1.    Control 1

1.1.    You are required to remain at:

1.2.    If you decide to permanently leave the specified premises you are required to notify the AFP Superintendent of your new address or the address you will be staying at in writing three (3) business days prior to departing the specified premises.

1.3.    If you wish to reside temporarily at other premises, you may request an exemption from residing at the specified premises for specified periods from the AFP Superintendent.

1.4.    You must present and identify yourself at the specified premises during the curfew period upon request by a police officer.

2.    Control 2

2.1.    You are prohibited from being at any of the following areas:

3.    Control 3

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

3.2.    Control 3.1 does not prohibit you accessing or viewing material:

4.    Control 4

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

5.    Control 5

5.1.    You are prohibited from possessing or using any of these specified articles or substances, namely:

6.    Control 6

6.1.    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:

7.    Control 7

7.1.    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).

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

7.3.    You are prohibited from tampering with, damaging or destroying any component of the permitted mobile phone or any equipment necessary for the operation of the permitted mobile phone, or directing, causing or permitting another person to do any of those things.

7.4.    You are prohibited from deleting any platforms, programs, software or data (including, but not limited to, software programs, messages, iMessages, call logs, emails, and internet history) stored on or accessible from the permitted mobile phone.

7.5.    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, telecommunication service provider or phone number connected to the permitted mobile phone.

7.6.    At any time the AFP Superintendent (or a police officer acting under the AFP Superintendent’s direction) requests, you must present the permitted mobile phone for inspection and open any applications the AFP Superintendent or police officer directs you to open.

7.7.    You are, where applicable, required to provide any password/s or access to data to the AFP Superintendent (or a police officer acting under the AFP Superintendent’s direction) to facilitate the examination of the permitted mobile phone.

7.8.    If you change the password for the permitted mobile phone, 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 that police officer.

7.9.    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, you must notify the AFP Superintendent, or a police officer acting under the AFP Superintendent’s direction, as soon as practicable, but no later than twelve (12) hours after becoming so aware.

7.10.    You are prohibited from causing or allowing any other person to access or use the permitted mobile phone, except in the case of an emergency.

7.11.    You are prohibited from causing or allowing any other person to access or use any other mobile phone device on your behalf, except in the case of an emergency.

7.12.    If the emergency use exceptions in Controls 7.10 or 7.11 are enlivened, you are required to notify the AFP Superintendent as soon as possible after the emergency and:

8.    Control 8

8.1.    You are prohibited from accessing or using any fixed or landline telephone service other than one service that has been approved in writing by the AFP Superintendent for you to access or use (the permitted fixed or landline telephone service).

8.2.    To seek approval, you must:

8.3.    You are prohibited from causing or allowing any other person to access or use on your behalf any other fixed or landline telephone service, except in the case of an emergency.

8.4.    If the emergency use exception in Control 8.3 is enlivened, you are required to notify the AFP Superintendent as soon as possible after the emergency and:

9.    Control 9

9.1.    You are prohibited from accessing or using any public telephone, except in the case of an emergency.

9.2.    You are prohibited from causing or allowing any person to access or use on your behalf, any public telephone, except in the case of an emergency.

9.3.    If the emergency use exceptions in Controls 9.1 and 9.2 are enlivened, you are required to notify the AFP Superintendent as soon as possible after the emergency and:

10.    Control 10

10.1.    You are prohibited from accessing or using any electronic mail (email) account other than:

10.2.    To seek approval:

10.3.    You are prohibited from causing or allowing any other person to access or use the permitted email accounts.

10.4.    You are prohibited from causing or allowing any other person to access or use on your behalf any other email account.

11.    Control 11

11.1.    You are prohibited from accessing or using any computer other than:

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

11.3.    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.

11.4.    You are prohibited from deleting any platforms, programs, software or data (including, but not limited to, software programs, emails, and internet history) stored on or accessible from the permitted computer, or partitioning any drive.

11.5.    You are where applicable, required to provide any password/s or access data to facilitate the examination of the permitted computer to the AFP Superintendent (or a police officer acting under the AFP Superintendent’s direction).

11.6.    At any time the AFP Superintendent (or a police officer acting under the AFP Superintendent’s direction) requests, you must present the permitted computer for inspection and open any programs the AFP Superintendent or police officer directs you to open.

11.7.    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 that police officer.

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

12.    Control 12

12.1.    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 sixty (60) minutes per week.

12.2.    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.

13.    Exemptions requested by you

13.1.    You may request that the AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Controls 2.1(c), 6.1(e), 8.1, and 11.1(a).

13.2.    To request an exemption, you must:

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

13.4.    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.

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

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

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

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

14.2.    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.

14.3.    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 purposes) of no effect.

15.    Interpretation

In this Confirmed Control Order:

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    On 4 May 2021, this Court, on the application of the applicant, made an interim control order (ICO) pursuant to s 104.4 of the Schedule to the Criminal Code Act 1995 (Cth) (the Code) against the respondent. The controls, being the obligations, prohibitions and restrictions imposed on the respondent, were as follows:

1.    Control 1

1.1    You are required to remain at:

a.    [REDACTED] in the State of South Australia;

b.    or other such premises nominated by you within 24 hours from the time this Interim Control Order comes into force (the specified premises)

between the hours of 12:00 am and 4:30 am local time (the curfew period) each day from the day on which this Interim Control Order comes into force until the day that it ceases to be in force.

1.2    If you decide to permanently leave the specified premises you are required to notify the AFP Superintendent of your new address or the address you will be staying at in writing three (3) business days prior to departing the specified premises.

1.3    If you wish to reside temporarily at other premises, you may request an exemption from residing at the specified premises for specified periods from the AFP Superintendent.

1.4    You must present and identify yourself at the specified premises during the curfew period upon request by a police officer.

2.    Control 2

2.1    You are prohibited from being at any of the following areas:

a.    Inside, or in the grounds of, any prison or correctional facility, unless you are yourself incarcerated in that prison or correctional facility;

b.    At the residence of any person with whom, by reason of Control 6, you are prohibited from communicating or associating; and

c.    Any place in Australia outside the State of South Australia.

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.    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), other than material set out in Control 3.2.

3.2    Control 3.1 does not prohibit you accessing or viewing material:

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.

4.    Control 4

4.1    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, 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).

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).

5.    Control 5

5.1    You are prohibited from possessing or using any of these specified articles or substances, namely:

a.    Firearms or ammunition within the meaning of s 4 of the Firearms Act 2015 (SA);

b.    A ‘prohibited weapon’ within the meaning of s 6 of the Summary Offences Regulation 2016 (SA);

c.    Any quantity of petrol exceeding four (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.

6.    Control 6

6.1    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 person on parole, on bail, or in the community who is subject to a control order made under Division 104 of the Criminal Code Act 1995 (Cth);

c.    Any person convicted of, or currently charged with, an offence relating to terrorism in Australia within the meaning of section 3(1) of the Crimes Act 1914 (Cth);

d.    Any person convicted of, or currently charged with, an offence under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth);

e.    Any person located in Turkey, Iraq or Syria; and

f.    Any of the following specified individuals:

1.    Daniel John CLAVELL (Date of birth: 07/07/1987);

2.    Nathan John CLAVELL (Date of birth: 27/04/1998);

3.    Samia HUSSAIN (Date of birth: 12/02/1998);

4.    Joel Edward James CLAVELL (Date of birth: 20/02/2000); and

5.    Joshua John CLAVELL (Date of birth: 25/01/1989).

7.    Control 7

7.1    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).

7.2    Prior to using 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.

7.3    You are prohibited from tampering with, damaging or destroying any component of the permitted mobile phone or any equipment necessary for the operation of the permitted mobile phone, or directing, causing or permitting another person to do any of those things.

7.4    You are prohibited from deleting any platforms, programs, software or data (including, but not limited to, software programs, messages, iMessages, call logs, emails, and internet history) stored on or accessible from the permitted mobile phone.

7.5    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, telecommunication service provider or phone number connected to the permitted mobile phone.

7.6    At any time the AFP Superintendent (or a police officer acting under the AFP Superintendent’s direction) requests, you must present the permitted mobile phone for inspection and open any applications the AFP Superintendent or police officer directs you to open.

7.7    You are, where applicable, required to provide any password/s or access to data to the AFP Superintendent (or a police officer acting under the AFP Superintendent’s direction) to facilitate the examination of the permitted mobile phone.

7.8    If you change the password for the permitted mobile phone, 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 that police officer.

7.9    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, you must notify the AFP Superintendent, or a police officer acting under the AFP Superintendent’s direction, as soon as practicable, but no later than twelve (12) hours after becoming so aware.

7.10.    You are prohibited from causing or allowing any other person to access or use the permitted mobile phone, except in the case of an emergency.

7.11.    You are prohibited from causing or allowing any other person to access or use any other mobile phone device on your behalf, except in the case of an emergency.

7.12    If the emergency use exceptions in Controls 7.10 or 7.11 are 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 mobile phone or any other mobile phone device;

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 allow the other person to access or use the permitted mobile phone or any other mobile phone device; and

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

8.    Control 8

8.1    You are prohibited from accessing or using any fixed or landline telephone service other than one service that has been approved in writing by the AFP Superintendent for you to access or use (the permitted fixed or landline telephone service).

8.2    To seek approval, you must:

a.    Submit a written request to the AFP Superintendent which nominates the fixed or landline telephone service; and

b.    Provide any other information requested by or on behalf of the AFP Superintendent for the purpose of identifying the nominated fixed or landline telephone service.

8.3    You are prohibited from causing or allowing any other person to access or use on your behalf any other fixed or landline telephone service, except in the case of an emergency.

8.4    If the emergency use exception in Control 8.3 is enlivened, you are required to notify the AFP Superintendent as soon as possible after the emergency and:

a.    Provide such information as you have to the AFP Superintendent concerning identity of the ‘other person’ who accessed or used the other fixed or landline telephone service;

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 allow the other person to access or use the fixed or landline telephone service; and

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

9.    Control 9

9.1    You are prohibited from accessing or using any public telephone, except in the case of an emergency.

9.2    You are prohibited from causing or allowing any person to access or use on your behalf, any public telephone, except in the case of an emergency.

9.3    If the emergency use exceptions in Controls 9.1 and 9.2 are enlivened, you are required to notify the AFP Superintendent as soon as possible after the emergency and:

a.    Provide such information as you have to the AFP Superintendent concerning identity of the ‘other person’ who accessed or used the public telephone (if not you);

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 the access or use of the public telephone; and

d.    Provide any other information required by, or on behalf of, the AFP Superintendent.

10.    Control 10

10.1    You are prohibited from accessing or using any electronic mail (email) account other than:

a.    One personal account; and

b.    One account that is issued to you by each educational institution you are attending;

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

10.2    To seek approval:

a.    You must submit a written request to the AFP Superintendent which nominates the permitted email accounts; and

b.    Provide any other information request by, or on behalf of, the AFP Superintendent in relation to, or for the purpose of identifying, the nominated email accounts which you will be accessing.

10.3    You are prohibited from causing or allowing any other person to access or use the permitted email accounts.

10.4    You are prohibited from causing or allowing any other person to access or use on your behalf any other email account.

11.    Control 11

11.1    You are prohibited from accessing or using any computer other than:

a.    one single laptop that has been provided to you by the AFP for you to access and use at any time (the 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 machines 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.

11.2    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;

c.    MAC address of the permitted computer;

d.    Any password associated with the permitted computer.

11.3    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.

11.4    You are prohibited from deleting any platforms, programs, software or data (including, but not limited to, software programs, emails, and internet history) stored on or accessible from the permitted computer, or partitioning any drive.

11.5    You are where applicable, required to provide any password/s or access data to facilitate the examination of the permitted computer to the AFP Superintendent (or a police officer acting under the AFP Superintendent’s direction).

11.6    At any time the AFP Superintendent (or a police officer acting under the AFP Superintendent’s direction) requests, you must present the permitted computer for inspection and open any programs the AFP Superintendent or police officer directs you to open.

11.7    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 that police officer.

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

12.    Control 12

12.1    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 sixty (60) minutes per week.

12.2    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.

13.    Exemptions requested by you

13.1    You may request that the AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Controls 2.1(c), 6.1(e), 8.1, and 11.1(a).

13.2    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.

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

13.4    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.

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

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

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

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

14.2    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.

14.3    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 purposes) of no effect.

15.    Interpretation

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 and Special Investigations Command.

b.    Emergency means an actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of yourself or a member of your immediate family, or threatens to destroy or damage the specified premises.

c.    Material time and date means:

i.    in relation to a request for an exemption to the requirements or prohibitions in Control 2.1 (c) – the date and time at which you wish to depart the State of South Australia;

ii.    in relation to a request for an exemption to the requirements or prohibitions in Control 6.1(e) – the date and time at which you wish to communicate with the person located in Turkey, Iraq or Syria;

iii.    in relation to a request for an exemption to the requirements or prohibition in Control 8.1 – the date and time at which you wish to access or use another fixed or landline telephone service;

iv.    in relation to a request for an exemption to the requirements or prohibitions in Control 11.1(a) – the date and time at which you wish to use an alternative computer.

d.    Password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device, application, service, software or hardware.

e.    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’ or ‘special constable’ within the meaning of the Police Act 1998 (SA).

2    In making the ICO, I was satisfied of the matters set out in s 104.4(1) of the Code and, in particular, I was satisfied on the balance of probabilities that the respondent was a person convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Code) and that each of the controls was reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Code) and for the purpose of preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Code).

3    The respondent did not, in substance, oppose the making of the ICO. She did indicate through her counsel that she reserved the right to challenge at the confirmation hearing the facts and inferences that might be drawn from the facts and the grounds said by the applicant to support the making of the ICO.

4    On 6 December 2021, the matter came before the Court for confirmation of the ICO made on 4 May 2021. The respondent opposed the making of any controls and, in the alternative, submitted that if the Court concluded that some controls were required, Controls 2–6 inclusive were sufficient and the statutory requirements for Controls 7–11 inclusive were not met. In her written submissions, she identified the principal issue as one of proportionality.

5    On 22 December 2021, I made an order confirming the ICO under s 104.14(7)(c) of the Code, which is in force up to and including 4 May 2022 (s 104.16(1)(d) of the Code). I said that I would deliver reasons for the decision and these are the reasons.

The Evidence on the Application to Confirm the ICO

6    The applicant relied on the evidence of nine witnesses, a Statement of Agreed Facts and Annexures (SOAF) and a Proposed Tender Bundle of documents. Each of the nine witnesses had sworn an affidavit or affidavits and those affidavits were tendered without the respondent requiring the deponent for cross-examination at the confirmation hearing. The respondent objected to various pieces of evidence in the affidavits and I ruled on some of those objections and reserved my ruling on other objections, which were primarily relevance objections. The respondent also relied on the SOAF, but otherwise did not adduce any evidence.

7    The principal witness for the applicant was the applicant herself, Commander Sandra Booth. Her substantive rank is Commander, Counter Terrorism Enduring Risk Investigations. She swore two affidavits, the first of which was a substantial affidavit which she also relied on to obtain the ICO.

8    Ms Megan Grech is a senior psychologist who is employed by the Government of South Australia, Department for Correctional Services (Correctional Services) within the Sentence Management Unit. Ms Grech interviewed the respondent twice in February 2021 and prepared and produced to the Court a Personality Assessment Summary dated 12 March 2021 relating to the respondent.

9    Dr Henry Howard Pharo is employed by Correctional Services in the position of the Director, Offender Rehabilitation Services. Dr Pharo has qualifications in psychology. He supervised Ms Kimberley Chapple who was a senior clinician within the Rehabilitation Programs Branch. Ms Chapple provided psychological treatment to the respondent between approximately February 2019 and July 2019 while the respondent was held in custody in the Adelaide Women’s Prison. Dr Pharo produced a Rehabilitation Summary Report prepared by Ms Chapple with respect to the respondent dated 5 August 2019.

10    Ms Emma Louise Roesch is employed by Correctional Services in the position of Manager, Assessment and Sentence Planning, Sentence Management Unit. She interviewed the respondent on the following dates: 30 April 2019, 14 June 2019 and 4 December 2020, and prepared and produced to the Court two Individual Development Plans and details of a VERA-2R (Violent Extremist Risk Assessment – 2 Revised tool) with respect to the respondent.

11    Ms Lauren Frances Sommer is employed by Correctional Services in the position of Manager, Offender Development at the Adelaide Women’s Prison and Adelaide Pre-Release Centre. She has a qualification in social work. On 5 June 2019, she interviewed the respondent by telephone and then prepared a parole report dated 9 July 2019 which she produced to the Court. On 20 October 2020, she interviewed the respondent and then prepared a second parole report dated 21 October 2020 which she produced to the Court.

12    Mr Simon Musgrove Warwick is the State Director South Australia and Northern Territory of the Australian Criminal Intelligence Commission. Between 2016 and 2019, he was a Detective Sergeant of the Australian Federal Police (AFP) and performed the role of Team Leader of the Joint Counter Terrorism Team, Adelaide. He was responsible for managing Counter Terrorism investigations in South Australia and that included the investigation into the respondent. He reviewed the electronic evidence served in the brief of evidence in the respondent’s criminal proceedings, although not in its entirety. Mr Warwick identifies material downloaded by the respondent and identifies other material which is also referred to in the SOAF.

13    Mr John Gerard Young is employed by the Government of South Australia, Department of Human Services in the position of Senior Project Officer – Youth Inclusion, previously known as the Youth Inclusion Intervention Program (the YIIP). The YIIP is a countering violent extremism intervention program. Mr Young has interviewed the respondent on a number of occasions and he prepared reports called Engagement Summary reports and case notes with respect to the respondent’s involvement in the YIIP and his contact with her. He produced those case notes and reports to the Court.

14    In assessing the evidence of what I will broadly call the health professionals and others involved in the respondent’s rehabilitation, I bear in mind the context in each case and, in particular, the point in time at which the opinion is expressed and the particular question or issue to which the opinion is directed.

15    The applicant has also tendered two affidavits of AFP members which establish that the requirements of s 104.12 (affidavit of Mr Theo Tsavalas) and s 104.12A (affidavit of Ms Kate Louise Bamford) of the Code have been complied with. The contrary was not suggested by the respondent.

16    The Proposed Tender Bundle of documents included documents relevant to the criminal histories of Joel, Joshua, Nathan and Daniel Clavell who approached the respondent with offers of sympathy and support. As I understand it, the applicant seeks to adduce these criminal histories to establish no more than what was found by Charlesworth J in McCartney v Abdirahman-Khalif (No 2) [2020] FCA 1002 (McCartney v Abdirahman-Khalif (No 2)) (at [108]):

108    Members of the Clavell family have had involvement with the criminal justice system, as follows:

(1)    Joshua Clavell’s criminal record includes a robbery and weapons offence in 2005, dishonesty and property offences in 2007, an assault offence in 2009, driving offences in 2011, violent and property offences in 2018 and violent and property offences in 2019. On 17 June 2019, Joshua Clavell was charged with reckless conduct endangering life, intentional exposure of police officer to risk by driving, aggravated intentional exposure of police officer to risk by driving, damage to emergency service vehicle by reckless driving, assault police officer (indictable).

(2)    Daniel Clavell’s criminal record includes attempted robbery in 2005, a resist police offence in 2006, an offence of violence in 2008, a drug offence in 2010, a drug offence in 2011, a drug offence in 2012, firearms, assault, drug and driving offences in 2013, assault and driving offences in 2014 and a property offence in 2019.

(3)    Nathan Clavell has convictions from 2018 for a property offence, stalking/intimidation and resisting or hindering police.

(4)    On 26 July 2019, Joel Clavell was charged with reckless conduct endangering life, intentional exposure of police officer to risk by driving, aggravated intentional exposure of police officer to risk by driving, damage to emergency services vehicle by reckless driving, eight counts of assault police officer (indictable) and six counts of make threats to kill.

17    The agreed facts with respect to this topic are as follows:

143.    Whilst in custody, the Respondent received correspondence from members of the Clavell family, who she did not know before receipt of that correspondence. At the time of receipt of that correspondence, and until late August 2019, the Respondent was unaware of their history or conduct.

144.    In late August 2019, the Respondent was provided information by 2 officers of the South Australian Department for Correctional Services (DCS) who informed the Respondent of the Clavell family’s history and associations. The Respondent ceased communications with the Clavell family immediately thereafter.

18    The Proposed Tender Bundle of documents also includes a record of interview between a police officer and Joel Clavell on 10 September 2019 wherein Joel Clavell is asked about the reason the respondent’s name is in material found by the AFP.

19    Finally in relation to this topic of contact between the respondent and the Clavells, there is correspondence between the respondent and the Clavells which the former ultimately brought to an end. The applicant’s case as to the relevance of the respondent’s association with the Clavell family is identified in two paragraphs in Commander Booth’s first affidavit as follows:

103    In my opinion, the Respondent has proven to be particularly susceptible to:

103.1    the influence of extremist propaganda and violent material as described at Annexure SB-04 at [59]-[67]; and

103.2    cultivation or grooming by Islamic State adherents and similar extremists based on her engagement with the Mombasa Group and the Clavell family as described at Annexure SB-04 at [68]-[83] and [160]-[177].

104    Given the Respondent’s personal vulnerabilities and her history of predisposition towards adhering to an extremist ideology, it is my opinion that if the Respondent were to be cultivated by other extremists or were to access Islamic State extremist material, there is a real risk that it could lead to her supporting, facilitating or engaging in a terrorist act.

20    In my opinion, this material is evidence that, if it were accepted, could rationally affect the assessment of the probability of a fact in issue, that is, the risk of the respondent engaging in a terrorist act or providing support for, or facilitating, a terrorist act (see s 55 of the Evidence Act 1995 (Cth)). It does not become irrelevant because the respondent brought her contact with the Clavells to an end.

21    I will receive into evidence the documents behind tabs 1–6 inclusive in the Proposed Tender Bundle of documents.

22    With respect to the balance of the relevance objections upon which I reserved my ruling, I rule as follows:

(1)    Affidavit of Commander Booth sworn on 9 April 2021:

(a)    Paragraphs 36.1 to 36.9 inclusive, 41 to 43 inclusive, 48 to 51 inclusive, 54 (2nd and 3rd sentences), 55, 56 and 58 received because they are relevant to Commander Booth’s knowledge and experience and albeit sometimes marginal, to her overall expertise;

(b)    Paragraphs 45 to 47 inclusive, 60 to 62 inclusive, 64, 81 and 83 received because they are relevant to the background of the applicant’s case; and

(c)    Paragraph 103 received as part of the ruling relating to the association between the respondent and the Clavells.

(2)    Affidavit of Commander Booth sworn on 23 September 2021: Paragraphs 13, 17, 19, 28 and 33 received following the rulings in relation to Commander Booth’s first affidavit.

General Background

23    In McCartney v Abdirahman-Khalif (No 2), Charlesworth J provided the following summary of Islamic State:

33    Between 29 June 2014 and 26 October 2019, Abu Bakr Al-Baghdadi (Al-Baghdadi) was the self-proclaimed “leader” of a group which calls itself Islamic State.

34    Persons purporting to represent and speak for Islamic State follow an extreme interpretation of Islam which is anti-Western and promotes sectarian violence. They sought to establish a presence in the traditional Islamic lands of Iraq and Syria and encouraged Muslims to travel to territory now formerly held by Islamic State to defend it and to develop and populate an Islamic society. Persons purporting to speak on behalf of Islamic State have exhorted their followers to carry out violent attacks against persons they perceive to be its enemies. In September 2014, Abu Muhammad al-Adani, purporting to speak on behalf of Islamic State, publicly stated:

So O muwahhid, do not let this battle pass you by wherever you may be. You must strike the soldiers, patrons, and troops of the tawaghft (tyrannical, oppressive rulers). Strike their police, security, and intelligence members, as well as their treacherous agents … If you can kill a disbelieving American or European - especially the spiteful and filthy French - or an Australian, or a Canadian, or any other disbeliever from the disbelievers waging war, including the citizens of the countries that entered into a coalition against the Islamic State, then rely upon Allah, and kill him in any manner or way however it may be.

Do not ask for anyone’s advice and do not seek anyone’s verdict. Kill the disbeliever whether he is civilian or military, for they have the same ruling. Both of them are disbelievers … If you are not able to find an JED or a bullet, then single out the disbelieving American, Frenchman, or any of their allies. Smash his head with a rock, or slaughter him with a knife, or run him over with your car, or throw him down from a high place, or choke him, or poison him.

35    In recent years a number of attacks have been carried out where persons purporting to speak for Islamic State have publicly claimed responsibility.

36    Islamic groups (including, but not limited to, persons purporting to speak for and/or represent Islamic State) have used a musical form of Arabic poetry, essentially chants, known as nasheeds.

37    The al-Hayat Media Centre publishes and disseminates propaganda on behalf of Islamic State, including material which praises terrorist attacks, including in Australia, and seeks to recruit people to join Islamic State.

24    Further detail is provided in the SOAF (paras 13 to 40 inclusive), but in the interests of brevity, I will not set those paragraphs out. The key points are that it is an organisation that promotes extreme violence and that it has relatively sophisticated techniques, including the use of social media for the recruitment of both men and women and for the dissemination of propaganda.

25    As to the respondent’s background and the criminal proceedings against her, the following matters in the SOAF provide an adequate summary:

3.    Zainab Abdirahman-Khalif (the Respondent) was born on 1 January 1995, in the Benadir refugee camp near Mombasa, in Kenya, to parents of Somali origin. The Respondent lived firstly in that refugee camp, and then another, called the Kakuma refugee camp in northern Kenya, until she was 13 years of age.

4.    In 2009, the Respondent immigrated to Australia as a refugee, along with her mother and 2 brothers.

5.    The Respondent identifies as a Muslim and in particular, she identifies with the Sunni branch of that religion.

6.    From 2009 until December 2010, the Respondent attended an English language school, the Adelaide Secondary School of English.

7.    In 2011 and 2012, the Respondent attended the Islamic College of South Australia.

8.    Between January 2014 and 7 March 2016, the Respondent studied for a Diploma in Science and Technology, a pathway toward studies in Nursing, at the University of South Australia.

9.    On 6 May 2015, the Respondent acquired Australian citizenship.

10.    On 7 March 2016, the Respondent withdrew from her studies at the University of South Australia.

…    

126.    The Respondent’s parents divorced when she was 7 years old. She had little involvement with her natural father since that time.

127.    The Respondent’s mother remarried in 2015, and her step-father cohabited with the Respondent’s family from March 2015. The Respondent told Dr Lim that there was a significant degree of tension between the Respondent and her stepfather, and then the Respondent and her mother, in the period from about 3 months after this cohabitation.

128.    From about February 2016, the Respondent undertook voluntary work at a Somalian Community School. This lasted for a period of 3 months at which time her mother forced her to cease that activity.

…

132.    On 23 May 2017, the Respondent was charged with one count of being a member of a terrorist organisation, namely Islamic State, contrary to s 102.3 of the Criminal Code (Cth).

133.    On 17 September 2018, the Respondent was convicted by unanimous verdict of a jury of the above offence.

134.    On 16 April 2019, the Respondent was sentenced to imprisonment for 3 years with a non-parole period of 2 years and 3 months, to commence on the date she was taken into custody, namely 23 May 2017.

135.    On 8 August 2019, the Respondent was refused parole.

…

136.    On 31 October 2019 the South Australian Court of Appeal (Kourakis CJ and Parker J, Kelly J dissenting) upheld an appeal by the Respondent against her conviction and sentence, setting aside her conviction and entering an order of acquittal (Abdirahman­Khalif v R [2019] SASCFC 133). On the same date, the Respondent was released from custody.

…

137.    On 22 November 2019, the Commonwealth Director of Public Prosecutions (CDPP) filed an application for special leave to appeal to the High Court from the judgment and orders of the Court of Criminal Appeal.

138.    On 20 March 2020 the High Court granted the-CDPP’s application for special leave to appeal.

139.    On 14 October 2020, the High Court allowed the CDPP’s appeal. The High Court set aside the orders of the South Australian Court of Appeal made on 31 October 2019 and, in their place, ordered that the Respondent’s appeal against conviction be dismissed.

140.    On the same day the Respondent was taken back into custody to serve the remainder of her sentence of imprisonment.

141.    On 6 May 2021, the Respondent completed her sentence and was released from custody.

…

142.    The Respondent was incarcerated at Adelaide Women’s Prison from 23 May 2017 until 31 October 2019 and then from 14 October 2020 until 6 May 2021.

26    With respect to matters referred to in paras 132 to 134 inclusive, the particulars of the respondent’s conduct as given by the prosecution at her trial and forming the basis upon which she was sentenced by the sentencing judge were as follows:

(1)    Attempting to travel on a one-way ticket to Istanbul, Turkey in order to engage with the terrorist organisation, Islamic State;

(2)    Possessing and accessing material promoting Islamic State and violent jihad;

(3)    Communicating with members of Islamic State;

(4)    Pledging an oath of allegiance (bay’ah) to the leader of Islamic State, Abu Bakr al-Baghdadi;

(5)    Expressing support for Islamic State and violent jihad including by recitation of Islamic State and extremist Nasheeds; and

(6)    Self-identification as “muwahideen”, a term used as an identifier by Islamic State members.

27    The sentencing judge found that the prosecution had established these matters beyond reasonable doubt and he sentenced the respondent on that basis.

28    On 22 November 2019, this Court made an ICO pursuant to s 104.4 of the Code: McCartney v Abdirahman-Khalif [2019] FCA 2218 and on 17 July 2020 that order was confirmed: McCartney v Abdirahman-Khalif (No 2).

Legislative Provisions and Relevant Principles

29    Section 104.14 of the Code which deals with the Court’s power to confirm an ICO provides, relevantly:

(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.

30    Section 104.4(1)(c) and (d) referred to in s 104.14(7)(c) above relevantly provide as follows:

(1)    The issuing court may make an order under this section in relation to the person, but only if:

…

(c)    the court is satisfied on the balance of probabilities:

…

(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

…

(vi)    that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or

…

(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 …

31    The term “terrorist act” is defined in s 100.1(1) of the Code as follows:

… means an action or threat of action where:

(a)    the action falls within subsection (2) and does not fall within subsection (3); and

(b)    the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c)    the action is done or the threat is made with the intention of:

(i)    coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii)    intimidating the public or a section of the public.

…

(2)    Action falls within this subsection if it:

(a)    causes serious harm that is physical harm to a person; or

(b)    causes serious damage to property; or

(c)    causes a person’s death; or

(d)    endangers a person’s life, other than the life of the person taking the action; or

(e)    creates a serious risk to the health or safety of the public or a section of the public; or

(f)    seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i)    an information system; or

(ii)    a telecommunications system; or

(iii)    a financial system; or

(iv)    a system used for the delivery of essential government services; or

(v)    a system used for, or by, an essential public utility; or

(vi)    a system used for, or by, a transport system.

(3)    Action falls within this subsection if it:

(a)    is advocacy, protest, dissent or industrial action; and

(b)    is not intended:

(i)    to cause serious harm that is physical harm to a person; or

(ii)    to cause a person’s death; or

(iii)    to endanger the life of a person, other than the person taking the action; or

(iv)    to create a serious risk to the health or safety of the public or a section of the public.

32    The term “terrorist organisation” is defined in s 102.1(1) of the Code. It is not necessary to set it out.

33    Section 104.4(2) and (2A) which inform the operation of s 104.4(1) provide as follows:

(2)    For the purposes of paragraph (1)(d), in determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account:

(a)    as a paramount consideration in all cases—the objects of this Division (see section 104.1); and

(b)    as a primary consideration in the case where the person is 14 to 17 years of age—the best interests of the person; and

(c)    as an additional consideration in all cases—the impact of the obligation, prohibition or restriction on the person’s circumstances (including the person’s financial and personal circumstances).

(2A)    In determining what is in the best interests of a person for the purposes of paragraph (2)(b), the court must take into account the following:

(a)    the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;

(b)    the physical and mental health of the person;

(c)    the benefit to the person of having a meaningful relationship with his or her family and friends;

(d)    the right of the person to receive an education;

(e)    the right of the person to practise his or her religion;

(f)    any other matter the court considers relevant.

34    Finally, the objects of Division 104 which are referred to in s 104.4(2)(a) above are set out in s 104.1. They are as follows:

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.

35    It is clear enough that the purpose of an order under ss 104.4 and 104.14 of the Code is the protection of the public and not punishment of the person who is to be the subject of the order. That is evident from the terms of s 104.4 itself and reinforced by reference to the objects of the Division which at “the s 104.4(1)(d) stage” are identified as a paramount consideration. The onus of proof is on the applicant for the order to satisfy the Court of the relevant matters and the standard of proof is proof on the balance of probabilities (as to which see also s 140 of the Evidence Act).

36    The Court must be satisfied that each of the obligations, prohibitions and restrictions (controls) is reasonably necessary, and reasonably appropriate and adapted for the purposes identified in s 104.4(1)(d) (which are objects of the Division identified in s 104.1).

37    In Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, Gleeson CJ said of that exercise the following (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.

(Citation omitted.)

Justices Gummow and Crennan said (at [99] and [103]):

99    Judicial techniques must then be applied 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)).

…

103    This notion of sufficient connection between the desired end and the means proposed for its attainment may have its origins in constitutional law, but it is capable of judicial application elsewhere. Section 104.4(1) is an example. So also is the use made of notions of reasonable necessity and “reasonably appropriate and adapted” in the balancing exercise required of the issuing court by s 104.4(2).

38    The test of proportionality in the constitutional sphere is discussed by the High Court in the recent cases of McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 and Palmer v Western Australia [2021] HCA 5; (2021) 388 ALR 180 (see also Booth v Namoa [2019] FCA 2213 at [36]–[40] per Rares J).

39    One element of the exercise in which the Court is engaged is an assessment of the chance that absent certain controls, particular types of events will or may occur in the future. In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ made the following observations as to the exercise of assessing the likelihood of certain events occurring in the future (at 574–575):

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

40    In determining the appropriate response to a risk of a particular event occurring, the Court takes into account not only the chance of the risk eventuating, but also the nature and extent of the consequences if it does. Of course, it might be said that in the case of terrorism and terrorist acts, the nature and extent of the consequences are almost always very serious.

41    The respondent raised a point of construction concerning s 104.4(2)(b) of the Code. She submitted that the Court was required to take into account as a secondary or additional consideration her best interests and therefore the matters in s 104.4(2A), by reason of s 104.4(2)(b) of the Code. Although she is not a person who is 14 to 17 years of age so that her best interests are not a primary consideration, that does not mean (so the argument goes) that her best interests are not a secondary or additional consideration. The respondent submitted that s 104.4(2)(b) should be construed such that the best interests of a person who is not 14 to 17 years of age is a secondary or additional consideration. In my opinion, that is not the correct construction of s 104.4(2)(b). The Code was amended by the Counter-Terrorism Legislation Amendment Act (No 1) 2016 (Cth) to give the Court power to make orders in relation to persons between 14 and 17 years old and introduced s 104.4(2)(b) and (2A). That suggests that s 104.4(2)(b) is restricted in its operation to a person who is 14 to 17 years of age. Furthermore, when Parliament intends that a consideration, whether it be paramount or additional, is to apply generally, it has used the expression “in all cases”. That expression is not used in s 104.4(2)(b). Finally, I note the correct construction does not mean that the circumstances of a person who is not between 14 and 17 years of age are irrelevant; they may be addressed by the Court in the circumstances identified in s 104.4(2)(c).

42    The respondent accepted that she had been convicted of an offence relating to “a terrorist organisation”. However, she submitted that there was, or might be, an issue as to whether she had been convicted of an offence relating “to terrorism”. The respondent was convicted of committing the offence specified in s 102.3 of the Code which is as follows:

(1)    A person commits an offence if:

(a)    the person intentionally is a member of an organisation; and

(b)    the organisation is a terrorist organisation; and

(c)    the person knows the organisation is a terrorist organisation.

43    The respondent submitted that it is unclear whether being convicted of an offence of being or becoming a member of a terrorist organisation is, in fact, an offence relating to terrorism. She noted that the term “terrorism” is not defined in the Code. The respondent referred to the definition of “terrorist act” and said that it connotes some form of positive action or threat of action. She submitted that there is in this case no evidence that she had engaged in any action or threat of action. A conviction for being a member of a terrorist organisation did not necessarily imply any act involving harm or any act involving a threat of harm. The respondent submitted that the Code divides offences into two categories, one involving positive acts and the other involving membership. Ultimately, after being given an opportunity to consider the matter, the respondent made it clear that, although emphasising the fact she had not been convicted of an offence involving a violent act, she was not pressing the submission to the point of arguing that a jurisdictional precondition to the making of a control order had not been established. In other words, she was not submitting that “mere membership” (her words) of a terrorist organisation could not engage s 104.4(1) of the Code.

44    For her part, the applicant made it clear that she was not suggesting that joining a terrorist organisation is itself a terrorist act. The applicant’s submission is that in considering whether the controls are reasonably necessary and reasonably appropriate and adapted, the Court is to consider that matter for the purpose of protecting the public from a terrorist act or, importantly in the circumstances of this case, preventing the provision of support for or the facilitation of a terrorist act. The applicant submitted that the focus is on whether there is a risk in relation to the committing of a terrorist act or the provision of support for or the facilitation of a terrorist act. Those submissions are correct.

45    The applicant submitted that s 104.4(1)(c)(iv) is clearly engaged because the respondent has been convicted in Australia of an offence relating to a terrorist organisation. The applicant accepted that whether the offence is also an offence relating to terrorism is probably an area of debate. However, it is not one that the Court needs to determine. The applicant did not make a detailed submission on the point other than to refer to McCartney v EB [2019] FCA 183; (2019) 263 FCR 170 (at [18]–[19] and [29]–[30]). The applicant also referred to the decision of the High Court in Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 388 ALR 1 (at [46]), where the High Court observed that the Code is concerned with threats of action even if there is no present intention of physical violence provided, of course, that the circumstances otherwise satisfy the definition of terrorist act.

Analysis

46    I have set out s 102.3 of the Code and the particulars of the basis upon which the respondent was sentenced above (at [26] and [42]). As I have already indicated, the respondent submitted that the Court should place great weight on the fact that she was not convicted of any act involving violence. She submitted that the assessment of the risk is primarily informed by the nature of the offence of which the person has been convicted (Booth v Khazaal [2020] FCA 1241 at [23] per Wigney J) and on the basis that the risk of the respondent committing a terrorist act was very low. In fact, at one point she submitted that the only risk was that she would become a member of a terrorist organisation. As will become clear, I do not accept this submission. Nor do I consider it relevant to inquire into whether the High Court took an expansive view of membership of a terrorist organisation in ordering the respondent’s appeal against conviction be dismissed. It is the facts of the case that matter. For the same reason, it is unnecessary to analyse previous cases in which the Court has made a control order as the respondent urged in her written submissions. Furthermore, she pointed to the contents of an Operational Threat Assessment prepared by the Australia-New Zealand Counter-Terrorism Committee on or about 20 June 2019. That Operational Threat Assessment relates to the respondent and provided as follows. The potential risk posed by the respondent in regards to the commission of an act of politically motivated violence (PMV) within Australia, primarily South Australia, is “NOT EXPECTED”. At the time of reporting and based on current intelligence holdings, there were no clear indicators of a threat. With respect to the respondent’s intent to carry out an act of PMV in South Australia, both her confidence and desire level was assessed as “UNLIKELY”. The point is also made that until the respondent is observed in the community, her commitment to an extremist ideology cannot be accurately assessed. The assessment provided that with respect to the respondent’s knowledge and skills to carry out an act of PMV, it is assessed to be “HIGHLY UNLIKELY” and to have access to resources is assessed as “UNLIKELY”.

47    For her part, the applicant emphasised two matters. First, she emphasised the fact that the respondent’s interest in Islamic State and violent jihad was at an intense level and that the respondent was aware of the violence involved. Secondly, she emphasised the respondent’s involvement with the group referred to as the Women in Mombasa and the activities of that group.

48    Before discussing those matters, it is necessary to consider the immediate circumstances of the respondent’s attempted travel to Turkey. On 13 July 2016, the respondent booked a one-way ticket with Singapore Airlines to travel to Turkey, via Singapore on the next day. On 14 July 2016, the respondent attended the Singapore Airlines counter at Adelaide Airport, checked in for the flight from Adelaide to Singapore and obtained her boarding pass. The respondent did not check-in any luggage with Singapore Airlines. On her outgoing passenger card, the respondent stated that she was travelling to Turkey for seven days, and that the main reason for her overseas travel was a holiday. The respondent was prevented from boarding her flight by the Australian Border Force (ABF). During an examination of her carry-on luggage by ABF officials, various items were located, including an Australian citizenship document, $183 in cash, a printed accommodation booking, female clothing, including a ‘niqab’, black gloves and two black shirts and the Samsung S6. The respondent was carrying with her a handbag containing a power adaptor and plastic bag with toiletries. The respondent was arrested on 14 July 2016.

49    The applicant submitted that the Court should infer that the respondent’s intention in attempting to travel to Turkey was to travel from there into Syria or some other area controlled by Islamic State, to support its activities in some way. The applicant submitted that that follows from the observations of the sentencing judge summarised above (at [26]) and that to the extent necessary, there is an overwhelming inference to be drawn as to the respondent’s intention on the evidence before this Court. I note that such an inference was drawn by Charlesworth J in McCartney v Abdirahman-Khalif (No 2), although her Honour said that it was not necessary to make any conclusive findings as to the precise role the respondent would have played in the conflict zone had she succeeded in travelling to Turkey and, from there, into Syria (at [140] and [142]). In this connection, the respondent submitted that even assuming that she intended to go on to travel to Syria, it does not necessarily follow that there was any attempt or threat or suggestion of violence associated with that attempt or with that proposed travel. The respondent submitted that her decision should be characterised as a spontaneous act by a very young and immature youth who was in conflict with her mother and stepfather on domestic issues.

50    In my opinion, it follows from the circumstances of the respondent’s attempted travel and, in particular, the extent to which her conduct was consistent with the advice contained in the blogs discussing travel to Islamic State territory she had accessed in the months leading up to her attempted travel (discussed below at [52]), that it was the respondent’s intention to travel to Syria or some other area controlled by Islamic State and to engage with Islamic State in some way.

51    With respect to the first matter emphasised by the applicant then, the background as set out in the SOAF is that the respondent had the following communication devices: (1) an Apple MacBook Pro model A1278 laptop computer with serial number CPWL2PEYDTY3; and (2) between at least 23 November 2014 and 23 July 2015, an Apple iPhone 5 (the iPhone 5). The respondent replaced the iPhone 5 with a Samsung S6 Galaxy mobile phone (which is an Android based device) (the Samsung S6) in around May 2016.

52    Between 23 November 2014 and 23 July 2015, the respondent accessed on the iPhone 5 a number of blogs and a number of these blogs referred to violence and martyrdom. Although lengthy, it is instructive to set out the agreed facts with respect to the respondent’s access to blogs between 23 November 2014 and 23 July 2015:

45.    In the period between 23 November 2014 and 23 July 2015, the Respondent used the iPhone 5 to access blogs on a micro-blogging website called Tumblr. Tumblr is a social media application that enables users to publish, search, and access ‘micro blogs’ being short articles. Tumblr is an application which permits access to blogs on a very large range of subjects. Annexed to this Statement of Facts at Annexure A is a selection of blogs. For example:

45.1.    On 23 November 2014, the Respondent’s iPhone is recorded to have accessed a blog attributed to “Amir al-Mu’mineen Abu Umar al-Hussaini al-Baghdadi al­Quraishi – First Emir of the IS”. The blog discussed the beliefs of IS, particularly as it concerned Shia Muslims and others it considered to be apostates. It stated a belief that there was an obligation to kill “practitioners of witchcraft who are apostates and have become infidels”. It further stated “We believe those who defend the Infidel/apostate rulers are also apostates, as are those who help them (rulers) with any type of defense or aid; such as clothing, food, medicine or anything else that can strengthen their position. So, his actions (helping apostate rulers) thus, will become the justification/reason for us to shed his blood (due to his apostasy)” and that “we believe that Jihad fisabilillah (fighting in the path of Allah) is an obligation upon every single Muslim in the effort to liberate occupied Muslim lands”.

45.2.    On 28 March 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog attributed to “Umm Uthman”, a female resident in Al-Raqqa, Syria. The author stated that the blog was being made to “show you sisters how life is like here is [sic] dar al Islam and to prepare you as best I can”. The post concluded “May Allah azza wa jal allow this blog to be a means of benefit to my sisters and to bring you here to the Islamic state to the true justice of Islam”.

45.3.    Later on 28 March 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog which commenced, “Heres [sic] a list me and a group of sisters made of what you should pack on your hijrah to the Islamic state. May Allah bring anyone who is sincere here safe and well”. The list included winter clothing, running shoes and boots, toiletries for a month, stretchable t-shirts to accommodate future pregnancies, makeup, torch or LED lights, hijab, niqab, 2 black skirts, undergarments, toothpaste, comfortable pyjamas and flip flops. The blog included advice to bring hand luggage only unless taking a direct flight, and to delete all Islamic content and Telegram from mobile phones prior to travelling. It said “Remember you will be running in your hand luggage across the border so be smart-you need back pack”. Elsewhere it referred to transiting through Turkey and arriving in “Raqqa”.

45.4.    Later on 28 March 2015, the Respondent’siPhone 5 is recorded to have accessed a blog which commenced “Hijrah-what to bring if your going to study at the medical college (doctors needed)”. It discussed what textbooks should be brought on hijrah and what would be provided at the college. It closed “Sisters stuck in dar al kufr hoping to come. Please make use of your time in studying medicine. I know its difficult being stuck home but renew your intentions and work hard the sake of Allah. Dawlah needs your commitment, especially sisters in the medical field”.

45.5.    Later on 28 March 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog which discussed getting married before making hijrah and the accommodation for unmarried women who arrived in the IS territory. It observed that medical students could reside in a dorm.

45.6.    Later on 28 March 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog which discussed hijrah and setting up a home after arrival in IS territory, including the supply of food and a furnished apartment. It closed “Can you even imagine a state that cares so much for its people? Whose priority, spending, concern are you? This is the Islamic state and their concerns are the ummah”.

45.7.    On 2 April 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog which recounted the female author’s arrival in IS territory after crossing “the border” in a group of 17. It noted that all electronic devices were taken on arrival and observed “... you could be there for days to weeks with no communication with the outside word which is scary seeing as most parents still haven’t been told where there [sic] child is”. It stated “May allah take our souls as shuhada and put it in the bodies of green birds. Ameen. We met amazing sisters all different nationalities from 8oroccan to Australian to Indonesian in the maqqar”.

45.8.    On 7 April 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog “written by Abu Usamah as-Somali”, which discussed the obligatory nature of jihad and specified that this meant “going out and confronting the kuffaar directly; with one’s wealth, which means spending on what is required for jihad such as weapons etc...” The blog contended that “it is obligatory for women to take part in jihad by means of their wealth if they have excess [sic] to wealth”, and went on to state “For those who are unable to migrate to the IS but have the ability to support the Jihad and the Muhajireen. This is the next best thing you can do aside from striking the enemies in Dar al-Kufr”.

45.9.    On 8 April 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog which discussed relationships with family after leaving them behind to make hijrah to the IS.

45.10.    On 10 April 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog which discussed marriage in “the State” between women who have made hijrah and the men who far outnumber them.

45.11.    On 28 April 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog “By Abu Sa’eed Al-Britani”. The article opened “I felt that I should also give a glimpse into the lives of other Mujahideen here in Sham. These souls have gone forward and are now, bi ithnillaah, in the hearts of green birds”. It recounted the author’s recollections of jihadists in Raqqa and the surrounding region who had been martyred.

45.12.    On 5 May 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog “By Abu Sa’eed Al-Britani” discussing weaponry in the Sham. It commented “If you truly know the reward of killing a Kaafir, then you would pick up any gun and run towards the Kaafir with a smile of joy on your face”.

45.13.    Later on 5 May 2015, the Respondent’s iPhone 5 is recorded to have accessed another blog “By Abu Sa’eed Al-Britani” discussing duties of soldiers in Sham, including their “vital role in ensuring the Caliphate does not decrease in size”.

45.14.    On 10 June 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog which referred to an article written by “Journalist Huyssein Al-Maadidi ... About his trip to the Islamic State; his encounter with Islamic State mujahidin” which had been translated into English.

45.15.    On 13 June 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog which stated:

Know that in Jihad is the best in Dunya, Akhirah, and in leaving jihad there is a loss in Dunya

Do you await for us except on of the two best things

Meaning either victory or martyrdom leading to paradise, so whoever lives from the mujahidin lives an honourable life in Dunya.

45.16.    On 17 June 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog “By Abu Sa’eed Al-Britani” which discussed concerns which “sisters may have about coming to Sham”. The blog purported to explain, amongst other things, that “Dawlah is a State which is expanding every week in a balloon-like fashion, and all the deaths, killings, bombs etc. happen on the borders of the State in our ribat points”. ‘Ribat’ is a fortification built on a frontier.

45.17.    Later on 17 June 2015, the Respondent’s iPhone 5 is recorded to have accessed another blog “By Abu Sa’eed Al-Britani” which contained advice to the “Muhajirahs”, wives to the Mujaahid. The blog advised Muhajirahs to understand that the life of a Mujaahid is stressful, stating that “The blood he sees, the body pieces he walks over on the battlefield, the friends he loses, the disrupted sleep he gets, all of this is sufficient to make anyone break... So when your husband returns from the front lines, do not burden him with complaints... Some brothers end up wishing they could go for a martyrdom operation after marriage due to the stress some sisters cause them. Do not be like this”.

45.18.    On 2 July 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog “By Abu Sa’eed Al-Britani” which provided advice on preparations for travelling to Sham. The blog advised readers to save cash, although it also stated “however, even if you have nothing let this not be a reason to delay your hijrah and jihad as when the call to arms is made, you are required to come, whether light or heavy”. The author further advised readers to learn “military first aid” (noting that “[t]here have been a few cases where some brothers bleed to death due to the brothers around them not knowing the correct procedure on how to deal with injuries”), keep fit, learn Arabic, not overburden themselves with baggage and that “Once you arrive in Turkey airport, you need to get out and moving to your next destination as soon as possible as the Turkish police are arresting those who look suspicious. Being lightly packed helps here especially if you look like any other tourist. Furthermore, when crossing the border between Turkey and Sham, it can be somewhat difficult if you have extra baggage to run with”. Winter clothes were recommended. It noted that “the souk of Raqqa has almost everything you need”. The ‘souk of Raqqa’ is a market in the Syrian city of Raqqa.

45.19.    On 16 July 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog which discussed life with IS. The blog stated, inter alia, “When I arrived in Sham in February last year, I was so happy and believed that Allah had finally answered my prayers and I felt safe” and that “Living in the Islamic State. My family accepted my decision. Married to a Mujahid. Blessed with a child”.

45.20.    On 19 July 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog which concerned an “Islamic State fighter (originally from Saudi Arabia) singing a nasheed”. The blog stated, inter alia, that “this brother attained martyrdom few days ago”.

45.21.    On 22 July 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog containing “a list of things to bring if you are planning to make hijrah soon”. The list includes winter clothes, boots, hat, scarf and undergarments. The blog noted that “if you are Somali you know what a baati is (light house dress)”. It also listed medications, and “at least one jihab in your suitcase and one in the bag you are carrying with you once you are about to cross, preferably in black”. Under the heading “Electronics”, the blog recommended “Android Phone (No Apple. No iPhones/iPads/Macs etc they aren’t allowed here so sell them beforehand” a portable charger (solar and rechargeable) and other items. The blog stated “If you are planning hijrah on your own it’s best to be as discrete as possible, even if you think you can trust someone. It is best to wait until you actually reach until you break the news if that’s what you decide” and recommended readers to “Avoid searching things from your home wi-fi and devices you plan to bring, this way you have nothing that can be held against you in the case you were caught”.

45.22.    Later on 22 July 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog addressing “sisters who keep asking questions regarding life in the Islamic State”. The blog provided answers to questions including “what will happen after I reach Turkey?” and “What happens next after I cross the border?”.

45.23.    Later on 22 July 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog which contained further advice regarding hijrah. It provided advice under headings such as “Keep it Secret”, “Delete Everything” (under which it advised to “Just delete all the nasheed, videos, pictures, messages etc”), “Travel Route”, “What to Pack” and “Don’t contact your family until you have crossed the border”.

45.24.    Later on 22 July 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog from a woman in IS territory which was addressed to women who remain in “Dar-ul Kufr”. ‘Dar-ul Kufr’ means land not governed by Islam.

45.25.    Later on 22 July 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog “By Abu Sa’eed Al-Britani” entitled “Why should a Muslimah migrate to Sham”. The blog called for women to undertake hijrah as an obligation and to preserve their dignity. The blog stated:

...by migrating to Sham you are not just benefitting yourself but you are also benefitting the Islamic State in its expansion and advancement. By raising your kids here, you are increasing its population and hence creating more Mujaahideen of the future. A society cannot survive without inhabitants and just by you living in Sham you are helping its economy grow.

45.26.    On 23 July 2015, the Respondent’s iPhone 5 is recorded to have accessed a blog concerning Sharia law, IS and the punishments prescribed for various religious offences including death.

53    A significant amount of Islamic State material, or material relating to Islamic State, was found on the Samsung S6 when it was seized on 14 July 2016. This included videos “depicting executions, including a video of IS child soldiers executing prisoners and giving the one finger salute” (SOAF para 56).

54    Furthermore, on 22 September 2016, the Joint Counter Terrorism Team again seized the Samsung S6 and its contents were again examined. Analysis revealed approximately 300 audio files containing information purporting to be on behalf of Islamic State and also Nasheeds were stored on the device. It is an agreed fact that the Samsung S6 had been used to access a number of images and videos, including:

104.1.    A video depicting what purport to be IS fighters performing a one-fingered salute, wearing combat fatigues, using military-style weapons and beheading and whipping prisoners. See Annexure D: still images taken from that video.

104.2.    An image depicting London Bridge, Westminster and Big Ben in London with the following words superimposed in the foreground: “Britain is a nation of pimps and prostitutes. Soon it will rattle, crumble, and fall to its knees at the hands of the Muslims. Abu Mutassim”. See Annexure E: a copy of that image.

104.3.    A video depicting images of people holding signs which state “release all Muslim prisoners”, persons arrested and in the custody of Australian police and some with text stating, “Westerners need to accept the fact that Islam will dominate all lands it touches! The holy quran teaches us that where we put our feet we shall rule that land, it’s that simple!”. See Annexure F: still images taken from that video.

104.4.    A video depicting scenes of what purport to be IS fighters holding a grenade launcher and using other military-style weapons, a tank, fighters performing the one-fingered salute, prisoners on their knees about to be killed by fighters wielding large knives, and a quote from Abu Bakr Al-Bahgdadi stating: “So glad tidings o ummah of Islam and expect good, for your sons from the soldiers of the Islamic State today are stronger and more determined by Allah’s favour”. See Annexure G: still images taken from that video.

104.5.    A video depicting scenes including a deceased male persons with the words “despair not o’my brothers, I am a Shaheed (martyr)” superimposed, and a green field with the words “to give victory to my faith, and when my blood is spilling is a glad tiding of the approaching Shaheed”. See Annexure H: still images taken from that video.

55    The nature of Nasheeds is the subject of an agreed fact. The fact is as follows:

26.    Islamic groups (including, but not limited to, persons purporting to speak for and/or represent IS) have used a musical form of Arabic poetry, essentially chants, which are known as Nasheeds since the 1970s. There are categories of Nasheeds, including (i) battle hymns (ii) martyr hymns (iii) mourning hymns and (iv) praising hymns.

56    I referred earlier in these reasons to Mr Warwick’s evidence. I will not summarise it in full. The extreme nature of the violence shown in some of the videos may be illustrated by the description in para 46 of Mr Warwick’s affidavit of a video accessed by the respondent:

The video is of 14 minutes and 18 seconds total duration and commences with the title “Halab”. I would describe what is depicted in this video as follows. It features French IS fighters and predominantly is aimed at the French government and people from an IS perspective. … From 3 minutes duration images of IS fighters engaged in combat and multiple deceased persons are shown. … At 7 minutes and 30 seconds duration a young boy about 10 years old wearing camouflage and a beanie is shown firing an AK47 in a field. A younger boy about 8 years also fires the AK47. Both boys then give the 1 finger salute. … Footage of combat follows and then the young boy is talking to the camera, shooting his AK47 and giving the 1 finger salute. At 12 minutes and 30 seconds duration the footage shows a shooting range where the targets are various world leaders including Barack Obama. The young child then shoots the world leader targets in the head. From 13 minutes and 15 seconds duration footage is shown of 2 male captives in orange jumpsuits in a forest. The title is “Soldat de l’armee nosairite” which translates via Google translate to “soldier of the Nosairite army”. The young IS member (10-12 years old) approaches them together with a younger IS male child (approx. 8 years) with an adult IS member. They are dressed in all black with black beanies. The adult IS member hands both the children black handguns. At 13 minutes and 53 seconds duration the two children lift their handguns and take aim at the two captives’ heads. At 14 minutes duration the two young children fire their handguns into the head of the captives and execute them. This is captured in high definition and close up. The footage then shows the blood soaked corpses of the captives as the two IS children walk away and the video ends.

57    As I have said, the second matter which the applicant emphasised was the activities of the group known as the Women in Mombasa and the respondent’s association with that group. Those matters are the subject of agreed facts. Three women carried out a terrorist attack in Mombasa, Kenya on 11 September 2016. The respondent’s communications with those women, including communications in the immediate aftermath of the respondent’s attempted travel to Turkey, are described in the following agreed facts:

57.    By around 3 May 2016, the Respondent was in a ‘chat group’ with 3 young women in Mombasa, Kenya named Tasnim Farah (Farah), Maimuna Hussein (M. Hussein) and Ramla Hussein (R. Hussein) (the Women in Mombasa).

58.    The Respondent communicated with the Women in Mombasa using Telegram and WhatsApp.

59.    Contacts stored in the Samsung S6 Galaxy mobile phone (which is an Android based device) Telegram account included the Kenyan telephone number of each member of the Women in Mombasa.

60.    In their communications, the Women in Mombasa used nicknames or “kunyas”. The kunya and phone numbers of the 3 were:

60.1.    ‘Moon’ and +254772905374 for M Hussein. The number, ‘254772905374’, was subscribed to M. Hussein.

60.2.    ‘Bint Lovely’ and +254737258344 for R Hussein, although the number, itself, was subscribed to Farah.

60.3.    ‘Bint Sweety’ and +254737968344 for Farah. The number, ‘254737968344’, was subscribed to Farah.

61.    On 11 September 2016, all 3 of the Women in Mombasa (with whom the Respondent had been in a ‘chat group’) were killed whilst carrying out an attack in Mombasa, Kenya (see [89]-[97] below).

62.    In the course of her electronic communications via the Telegram application the Respondent used various kunyas for herself including ‘Umm Baraa’, ‘Umm Al-Baraa’ and ‘Umm Baraa Somaliah.’

63.    Between 3 May 2016 and 18 July 2016, the Respondent called (or attempted to call) M. Hussein and M. Hussein called (or attempted to call) the Respondent. There were at least 10 calls (or attempted calls) over that period.

64.    From about 5 May 2016, the Respondent also used the Samsung S6 and Telegram application to participate in a private chat group named ‘Baqiyaa Sisters’. This chat group had 4 members, 3 of whom were: the Respondent (using the kunya ‘Umm Al­Baraa’) R. Hussein and Farah.

65.    Between 15 May 2016 and 24 May 2016 the Respondent used the Samsung S6 and Telegram application to participate in another chat group named “Naughty Sisters”. This chat group had 4 members, 3 of whom were: the Respondent, R. Hussein and Farah.

66.    . Material posted to the “Naughty Sisters” chat group included a video called “Mujahideen Moments” from the Somalia and Kenya based Islamic Extremist group Al­Shabab. The video depicts persons calling for the creation of an IS in Somalia and Kenya. It also features sermons by Sheik Aboud Rogo, a deceased Mombasa-based extremist. In another IS video shared on the “Naughty Sisters” chat group it depicts several women shared their experiences of living in IS controlled territory.

67.    The profile picture used by each of Farah, M Hussein and R Hussein on Telegram was a photo of Abu Omar al-Shishani, a former Minister of War for IS.

68.    In a police interview on 8 February 2017, the Respondent described both Farah and M Hussein as friends.

69.    On 15 May 2016 the Respondent participated in a conversation in the “Naughty Sisters” chat group which included discussion regarding the Nasheed ‘Qariban’ …

70.    On 23 May 2016, a video titled ‘Mujahideen Moments’ was forwarded by the Respondent so that it was visible in the “Naughty Sisters” chat group. The video purports to be from the group known as Al-Shabab, and calls for the creation of an IS in Somalia and Kenya, and attacks against the ‘kuffar’. It features scenes depicting deceased persons, weapons and locations in Mombasa. It also features sermons by Kenyan based ideologues and images of Mombasa, Kenya.

71.    On 15 May 2016 the Respondent’s Samsung S6 is recorded to have accessed a document entitled “A Message to the Supporters of the Islamic State”, which states:

Islamic State supporters online have exceeded the tens of thousands. However, a great number of them only watch video releases and follow the news

To those I sent this message: Supporting brother, you are a part of the Islamic State media on the Internet don’t be a liability by just watching videos and following only, but learn how to upload, share, transcript, translate, program and work towards having an impact on the ongoing war against the disbelieving Crusaders.

Just as a society, Islamic State supporters include very diverse people with different skills and abilities. use what you know to do best to support the Islamic State. If you don’t, learn how to download / upload releases, get the know-how to be an efficient supporter.

Ask yourself: what have done to support the Islamic? Are you here to effectively support the Khilafah or to spend your free time? Supporting the Islamic State is by work, not by sitting watching idly. Leave the laziness of excuses and ask yourself what can you do to support the Mujahideen who defend the honour of the Muslims, facing the nations of Kufr and disbelief, giving their blood in battles in the east and the west?

72.    On 23 May 2016, in the “Naughty Sisters” chat group, a still image was posted of a woman dressed in all black pointing her index finger toward the ceiling. Subsequent analysis revealed this still image was similar to that depicted in a video also located on the Samsung S6.

…

84.    On 15 July 2016, the day after her attempted departure from Australia, the number apparently used by M. Hussein (+254772905374) sent a cartoon image of a crying child to the Respondent. On 17 July 2016 two further messages were sent from the same number saying ‘I miss you.’

58    The terrorist attack carried out by the Women in Mombasa is described in the following agreed facts:

89.    On 11 September 2016, the 3 Women in Mombasa (with whom the Respondent had communicated via a ‘chat group’) were killed whilst carrying out an attack in Mombasa, Kenya. On that day, at around 10.30am, the 3 Women in Mombasa, each wearing a hijab, entered the Mombasa police station in Kenya. One of the officers requested they remove their hijabs. Two of the women complied with the request.

90.    The women were armed with knives and carrying petrol in containers. Shortly after entering the station one of the women stabbed a police officer and wrestled with him whilst she attempted to remove his firearm from his holster. The other women doused the police station with petrol and set it alight, causing a large explosion.

91.    Throughout the course of the attack the 3 women were heard to shout, in Swahili, “Allah Akbar”, “Unbeliever”, “We have come to kill you non-believers”, “Infidels, we will finish you all”, “Infidels, we will kill you”, and “Kill me or I will kill you.”

92.    The 3 women died at the scene. Two of them were shot dead by police officers and the third died from complications from burns she sustained from the fire.

93.    Two of the women were identified as sisters, M. Hussein and R. Hussein. The third women was identified as Farah.

94.    Farah was observed to be wearing a wrist band with the word ‘Baaqiyah’ printed on it.

95.    In the days following the attack a handwritten note written by M. Hussein was published on Twitter account @nidalgazui with the title, “The letter of 3 women who attacked yesterday Kenyan’s Central Police Station, Pledge Allegiance to #ISIS”.

96.    The handwritten note contained the names “Umm Maysarah, Umm Ma’bad, Umm Sa’ad” and included the following text:

A Message to the Kuffar: We say to you, O filthy ones, ‘Indeed, we are disassociated from you and from whatever you worship other than Allah. We have denied you, and there has appeared between us and you animosity and hatred forever until you believe in Allah alone.’ By Allah, peace and security will only be wishes for you, especially when you’ve taken it upon yourselves to fight and oppress the true Muslims. You expect to live in peace while you kill us and fill your prisons with our brothers and sisters? Know that the Islamic State soldiers are everywhere and by Allah, we will take revenge. Even if it takes a while, we will take revenge.

97.    The attack was later claimed by persons holding themselves out as representing ISIS in the publication Rumiyah, under the heading ‘A Message from East Africa’. The article included the text set out in paragraph 95 above, as well as the following editorial comment:

If there are any men of this Ummah, who have not yet taken their stand against kufr by waging jihad for Allah’s cause and who truly care about fulfilling their duties to their Lord, they must march forth without delay. They can take their example from the countless thousands of men who have sacrificed themselves for Islam throughout the ages, or they can take a lesson from their courageous sisters. These men can learn what it means to be sincere to Allah by reading the last testament of their sisters in Kenya who have joined the ranks of the shuhada – we consider them so, and Allah is their judge.

The respondent was very interested in the attack. The agreed facts continue as follows:

98.    The day after the attack referred to at paragraphs [89]-[92] above, the Respondent used the Samsung S6 to access online news reports through the African news site ‘Widh Widh online news’. The news reports included reports about the attack.

99.    On 16 September 2016, the Respondent used the Samsung S6 to access online news reports through the African news site ‘Widh Widh online news’. The news reports included reports about the father of the Mombasa attackers wanting to bury his daughters.

100.    On 22 September 2016, the JCTT executed a search warrant at the Respondents residence. Police located, amongst other things, a binder book titled “Umm Baraa :) Year 2016 Subject: Sahaba Book, School Baqiya”, one page of which contained a series of handwritten telephone numbers including Kenyan country code +254, some of which were scribbled over. The scribbled over numbers included the numbers for each of M Hussein, R Hussein and Farah. In a police interview on 8 February 2017, the Respondent told police that the numbers were written down in her exercise book so that she could save them into her phone when it was replaced.

59    In the period following the terrorist attack by the Women in Mombasa, the respondent, rather than recoil from any further involvement in Islamic State, continued to involve herself heavily in Nasheeds and reciting statements referring to violent jihad. During this time, the respondent was also recorded (by listening device) as discussing with her brother the application “Kik”, during which she referred to having “deleted the messages”.

60    The applicant asked the Court to infer that the respondent knew of the proposed terrorist attack by the Women in Mombasa. If the Court is not prepared to draw this inference, then in the alternative, the applicant submitted that in making the risk assessment required in this case, the Court should take into account that the respondent may have known of the proposed terrorist attack. The respondent submitted that the evidence with respect to her communications with the Women in Mombasa was not strong enough to create a sufficient link between those communications and some suggestion that the respondent knew of a specific terrorist attack or of the attack that the Women in Mombasa were proposing to make. She submitted further that if she was viewing an African news site then it may well be that in the course of viewing that general African news site, a story about the Mombasa attack would have come up. The evidence does not rise high enough, the respondent submitted, to enable a finding that the respondent went out and sought specifically the news story about the attack.

61    In my opinion, an inference should be drawn, on the basis of the nature and extent of the respondent’s communications with the Women in Mombassa (above at [57]) and the evidence that the respondent accessed multiple reports about the attack carried out by the Women in Mombassa (above at [58]), that the respondent had prior knowledge of the attack. It is not necessary to consider making any additional finding such as the finding made by Charlesworth J in McCartney v Abdirahman-Khalif (No 2) that the respondent subjectively considered herself to be in a position to influence the timing of the attack (at [143]).

62    The applicant relies on comments the respondent was recorded (by listening device) as saying after voluntarily attending an interview with investigators from the Joint Counter Terrorism Team on 8 February 2017. Agreed fact 124 is as follows:

124.    The parties agree to the following facts, but the Respondent does not accept their relevance. Inferences to be drawn are a matter for submissions:

124.1.    After the interview with the JCTT on 8 February 2017, the Respondent was recorded on a listening device in a conversation with her mother and brothers in which she discussed the police investigation.

124.1.1.    That transcript records that in a discussion with her mother and brother about whether she should get a lawyer, the respondent said ‘Lawyer needs to be told the truth, these men already have the truth of the matter, what do I do? and then a bit later ‘What will a lawyer do for me! Say okay, I get a lawyer, he will ask me to tell him my case, tell him everything, is it true what these guys are saying, if it’s false, I need to tell him something, what do I tell him? What these guys are saying is true’:

124.1.2.    She also said ‘When they searched my phone, they took those things like pictures, videos, many videos, ISIS videos slaughtering white’.

To my mind, it is not immediately obvious what the respondent is saying in this passage and so I put it to one side.

63    The remarks by the judge who sentenced the respondent for her criminal offence are to the effect that the respondent committed the offence of which she was convicted between about 14 July 2016 and 23 May 2017. The respondent relies on the fact that that is now some time ago. In addition to this circumstance, the respondent relies on the following matters. First, during her incarceration in the Adelaide Women’s Prison, the respondent was a quiet person and a model prisoner (SOAF para 145) and she asserts that she has never acted violently and the AFP has no evidence to the contrary (SOAF para 146). Secondly, the respondent asserts that she has not corresponded with any person referred to in the then Control 10 since her release from custody on 31 October 2019 and the AFP has no evidence to the contrary (see now part of Control 6). Thirdly, the respondent has taken a number of voluntary steps towards her rehabilitation and her assimilation back into the community. The respondent has been participating in the YIIP since 15 May 2019, has made progress towards obtaining her driver’s licence, has taken steps to resume her tertiary studies, and whilst in custody at the Adelaide Women’s Prison, undertook the following programs: (1) a four week life skills program; (2) the Flinders “ACCEPT” Program; (3) the “Peace Education Programme”; and (4) the “FoodREDi Program” (SOAF paras 156 to 159). Fourthly, with respect to the ICO made on 22 November 2019, the respondent proactively complied with the order and with respect to the first confirmed control order, the respondent has proactively complied with that order (SOAF paras 165 to 166). Furthermore, the respondent asserts that she has never engaged in any conduct in contravention of the terms of the first ICO, or the first control order, and the AFP has no evidence to the contrary (SOAF para 167).

64    In addition to the fact that she has not engaged in violence and has taken steps towards her rehabilitation, the respondent relies on the fact that her passport has been cancelled. It is an agreed fact that on 19 August 2016, the Joint Counter Terrorism Team served the respondent with a copy of a passport cancellation letter that had been issued by the Department of Foreign Affairs and Trade. The letter, which was dated 19 July 2016, advised the respondent that under s 22(2)(d) of the Australian Passports Act 2005 (Cth) (the Act) the Minister for Foreign Affairs had cancelled the respondent’s Australian passport and that the decision to cancel her passport was made on the grounds that, pursuant to s 14(1)(a)(i) of the Act, the Director-General of Security suspected on reasonable grounds that if an Australian passport were issued, the respondent would be likely to engage in conduct that might prejudice the security of Australia or a foreign country, and that the respondent should be refused an Australian passport in order to prevent her from engaging in the conduct (SOAF para 88).

65    The respondent also relied on the insight and remorse shown in, for example, her letter to the Parole Board dated 22 November 2020 and in Ms Chapple’s Rehabilitation Summary Report dated 5 August 2019 and the counselling she has received from Dr Nadia Ibrahim, a person appointed by Correctional Services.

66    In addition to the absence of a passport, the respondent submitted that the applicant or the AFP had adequate powers to obtain warrants in relation to premises or to a person under s 3ZZOA and s 3ZZOB of the Crimes Act 1914 (Cth). In other words, there was a less intrusive means of eliminating or containing the risk and that is relevant to the proportionality analysis. Furthermore, the respondent submitted that the procedure of obtaining a monitoring warrant has the safeguard that the issuing officer must be satisfied of the statutory preconditions to the issuing of a warrant.

67    The presence of this procedure is relevant to the task I am carrying out by reason of s 104.4(1)(d) of the Code. However, it has not dissuaded me from the conclusion that all of the controls should be imposed. In my opinion, the risk is sufficiently significant to warrant the applicant or the AFP having the ability to take immediate action directly under a control order.

68    In support of the order, the applicant relied on two matters which she submitted were important. First, the applicant submitted that the respondent has at no time made full and sensible admissions as to the circumstances surrounding her offending. This is established, so the applicant submitted, by the responses given by the respondent during two interviews of her by the authorities and the evidence of the health professionals and others involved in her rehabilitation. Secondly, the applicant submitted that the evidence supports the conclusion that the respondent is a vulnerable person and particularly susceptible to undesirable influence and persuasion. This is established, so the applicant submitted, by the respondent’s association with the Clavell family in addition to the evidence of the health professionals and others involved in her rehabilitation. I accept both of these matters.

69    Dr Loraine Lim is a psychologist. She prepared an extensive report dated 1 November 2018 with respect to the respondent. Although this is some time ago, the report is detailed and instructive. In terms of the respondent’s presentation and behaviour during Dr Lim’s assessment, Dr Lim noted a pervasive reluctance on the respondent’s part to engage with the assessment process, except on a superficial level. Dr Lim noted that in relation to discussions about her alleged offending behaviour, she continued to present as somewhat dismissive and evasive, in a manner consistent with her documented communications with members of the AFP when she was interviewed on 14 July 2016 at the Adelaide Airport. In discussing her internet activities and, in particular, her interactions with Maimuna Hussein, Dr Lim noted that the respondent denied being aware of Maimuna’s extreme ideologies or the fact that she might have been a member of a terrorist organisation until after Maimuna was killed during the course of committing an act of terrorism in Kenya in September 2016. Dr Lim asked the respondent why she had purchased a one-way ticket to Turkey. The respondent replied that she was naïve. She had watched a lot of aid videos on Turkey and Syrian refugees and she wanted to go and help these people. She felt sorry for them. She knew her mother would never let her go. She argued with her mother. She just needed to find some aid workers when she got to Turkey and would be “okay”. With respect to her activity of watching or listening to Arabic-based rhetoric online or reciting Arabic passages out loud in the past, the respondent asserted that “there is no understanding behind it… I only say those things because I like how Arabic sounds out loud”. I do not accept these statements.

70    Dr Lim expressed the opinion that the respondent’s radicalisation had occurred against “a backdrop of social and emotional isolation, immaturity and naivety, as well as her experiences of a series of familial and psychosocial stressors between the period of mid-2015 to mid-2017”. Dr Lim diagnosed as likely an adjustment disorder with mixed anxiety and depressed mood at the time.

71    Dr Lim expressed the view that the respondent’s persistent rejection of the charges that had been filed against her was due to her lack of insight into her psychological vulnerabilities and the absence of any understanding on her part that she had been a victim of grooming by some of her online peers, in particular, Maimuna. Dr Lim noted that even after the respondent realised that the Women in Mombasa were terrorists, she persisted with her radicalisation because of “the disconnect between her interpretation of her own motivations for engaging in some of those violent materials versus her lack of understanding of the grooming process that was occurring”.

72    Dr Lim did not consider the respondent a dangerous person inherently predisposed to committing acts of violence. She gave her reasons for reaching that view. She stated that, in her opinion, the respondent is capable of empathy and feelings of guilt and remorse. Dr Lim considered that November 2018, or thereabouts, was the optimal time to offer the respondent the personally relevant rehabilitation she needed to maintain her ongoing disengagement from her radical ideologies.

73    Ms Chapple met with the respondent at the Adelaide Women’s Prison on 14 occasions between February 2019 and July 2019. She noted that the respondent failed to acknowledge the incriminating aspects of her offending. However, the respondent showed greater willingness to address her risk factors, including social isolation and inappropriate online communication. Ms Chapple said that future intervention should keep these risk factors in mind. A point of note is that Ms Chapple suggested future measures which would eliminate opportunities for others to groom the respondent.

74    In her memorandum dated 12 January 2021 and by way of summary of the key points from the Individual Development Plan and VERA-2R Panel Review, Ms Roesch noted that the respondent provided minimal new information at her most recent interview, although she had engaged in greater discussion compared to her 2019 interview:

She still minimised her index offending and denied that she was guilty of being a member of a terrorist organisation. It appeared that she was hesitant to discuss varied factors linked to her offending and focussed her discussion on her view that she was socially isolated and was utilising social media to relieve stress. She reported that she was vulnerable and naïve, was “easy to approach”, did not understand the gravity of the situation and justified her offending behaviour on this basis. She avoided topics that deviated from this (i.e. why she pledged allegiance to IS, planned travel to Turkey etc.). Ms Abdirahman-Khalif did not provide any further information in relation to her ideology or how she was radicalised, as she denied that this occurred, stating that she was “not a terrorist”.

75    Ms Roesch said that the respondent’s overall risk assessment had not changed from being moderate on a 3-point scale and moderate-low on a 5-point scale. However, she had continued to display no remorse or insight in relation to her offending and had continued to present with no empathy in relation to the victims of the offences committed by violent extremists. Furthermore, she had continued to minimise, justify and deny various aspects of her offending.

76    The respondent’s minimisation of her offending is identified in the parole reports dated 9 July 2019 and 21 October 2020. The respondent minimised her involvement in the offending in her discussions with Mr Young on 25 February 2021 stating, for example, “that there was no IS involvement, to her knowledge, in regards to her travel to Turkey” and “she did not have an in-depth knowledge of Islamic faith and was naïve in the sense that she considered everything she consumed about Islam on facebook and telegram was legitimate”. The respondent conceded that Islamic State propaganda may have been present in her social media consumption, but said that at this time prior to her flight to Turkey “she did not identify a difference between extremist and mainstream narratives of Islam on telegram at the time – due to an ignorance around Islam”. Again, I do not accept these matters as truthful.

77    A more recent indication of the respondent’s personality profile and traits is provided by the Personality Assessment Summary dated 12 March 2021 relating to the respondent and exhibited to the affidavit of Ms Grech. Ms Grech deposes that a Personality Assessment Summary is prepared to summarise the results of one or more personality assessment tools undertaken by an offender and to outline what the results mean in terms of the offender’s personality profile. Relevantly, the contents of the Personality Assessment Summary prepared in relation to the respondent overlap with and reflect the earlier conclusions drawn by Dr Lim in terms of the respondent’s vulnerability to outside influences and grooming. It is convenient to set out in full the summary of the respondent’s assessment:

Ms Abdirahman-Khalifs MCMI-IV profile echoed mostly that of a dependent personality who is interpersonally submissive (i.e., a submission to stronger, nurturing persons, without whom they may feel anxiously alone and helpless) and expressively puerile (i.e., characteristically withdrawn, docile and passive, displays few functional competencies and avoids self-assertion). Her responses also reflected that of an avoidant personality type, that can be interpersonally aversive (i.e., socially anxious, avoidant, and distrusting) and a personality style that can be melancholic (i.e., inclination towards pessimism) and turbulent (i.e., prone to manic like patterns that can lead to depression and exhaustion). Also embedded within the context of the identified personality patterns were the clinical syndromes relevant to generalised anxiety (i.e., an apprehensive sense that problems are imminent, an excessive alertness to one’s environment, and a generalised state of tension and edginess) and post-traumatic stress (i.e., reexperiencing of traumatic events with associated anxious arousal, hypervigilance and avoidance of triggers). These syndromes tend to be transient states that wax and wane over time and are often precipitated by external factors. Ms Abdirahman-Khalif engagement in the YSQ-L3 also demonstrated various potential maladaptive schemas, including emotional deprivation, failure to achieve, self-sacrifice, and subjugation.

78    It is necessary then, to consider the evidence of the respondent’s association with the Clavell family. Although it was the respondent who ceased the correspondence and she did so after becoming aware of the criminal history of the Clavell family, I accept the applicant’s submission that there remains a concern that the respondent through her conviction for a terrorism-related offence, has come to the attention of persons such as the Clavell family who may, and in this case did, seek to make contact with her. That is significant when considered alongside the findings I make as to the respondent’s personality profile and traits, namely that she is a vulnerable person susceptible to destructive influence. I note that Charlesworth J put the matter thus in McCartney v Abdirahman-Khalif (No 2) (at [147]):

By replying affectionately to the correspondence, the respondent made it known that she was amenable to further communications. The latter correspondence and money orders from the Clavell family must be viewed in that light. It is not correct to say that they were unsolicited.

I agree with that observation. It is unnecessary to decide precisely when the respondent became aware of the criminal history of the Clavell family.

Conclusions

79    I reached the view that confirmation of the ICO was justified in the circumstances. Even if the respondent is not herself likely to carry out a terrorist attack, there is a not an insubstantial risk that absent the controls, she will support or facilitate the commission of a terrorist act. The respondent has not fully acknowledged her role in her offending. Furthermore, she is a vulnerable person, susceptible to adverse and destructive influences. The continuation of the controls is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act and preventing the provision of support for, or the facilitation of, a terrorist act.

80    I have considered whether this conclusion should be reached in relation to all of the controls in the ICO or whether it should only be reached with respect to the Controls 1 to 6 and 12 to 15. In other words, I have considered the respondent’s alternative submission that Controls 7 to 11 inclusive should not be made. These controls relate to communication devices and represent an intrusion in terms of the respondent’s privacy, in particular in relation to a mobile phone (Control 7.6) and a computer (Control 11.6). Nevertheless, these controls are important checks on the respondent’s behaviour and, weighing the matters I have identified in the balance, I considered that these controls fell within the terms of s 104.4(1)(d) of the Code.

81    Based on the evidence given by Commander Booth in her second affidavit and the other evidence identified in these reasons, I considered that each of the controls fell within the terms of s 104.4(1)(d) of the Code.

Associate:    

Dated:    19 January 2022