FEDERAL COURT OF AUSTRALIA

Taylor v Brookman [2024] FCA 200

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 104.14(7)(c) of the Criminal Code Act 1995 (Cth), the interim control order made in relation to the Respondent on 5 October 2023 be confirmed without variation in the terms of the confirmed control order set out in the Annexure to these Orders.

2.    This confirmed control order be in force until and including 5 July 2024.

3.    The Respondent’s lawyer may attend the AFP Melbourne office at 155 Little Lonsdale Street, Melbourne, Victoria between 9 am to 4 pm, Monday to Friday in order to obtain a copy of these Orders.

4.    There is to be no disclosure, by publication or otherwise, of:

4.1    the identity of the Witness whose statement is at pages 677 to 719 of the First Affidavit of Caroline Taylor sworn 7 July 2023, including the Witness’s name, gender, image, country of residence and citizenship,

4.2    the statement that is at pages 677 to 719 of the First Affidavit of Caroline Taylor sworn 7 July 2023,

4.3    paragraphs 37.1, 37.2, 39.1, 43.2 – 43.5, 62, 63 (and the identity of the witness as contained in the footnotes therein) of annexure CT-05 to the First Affidavit of Caroline Taylor sworn on 7 July 2023, or

4.4    any other part of the proceeding, including preliminary discussion or legal argument, or information derived from the proceedings, which refer to or may disclose the identity of the Witness.

5.    Order 4 is made under s 37AF of the Federal Court of Australia Act 1976 (Cth) (on the grounds set out in s 37AG(1)(b) and (c) of that Act).

6.    Order 4 operates for a period of five years.

7.    Order 4 does not prevent disclosure of information to and between the following people for the purposes of these proceedings:

7.1    the presiding judge and necessary staff of this Court;

7.2    persons referred to in s 6(1) of the Australian Federal Police Act 1979 (Cth) and legal representatives of the Australian Federal Police instructed in these proceedings;

7.3    the Respondent and his legal representatives;

7.4    Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth));

7.5    officers of the foreign agencies identified in the Confidential Second Affidavit of Caroline Taylor sworn on 7 July 2023.

8.    There is to be no disclosure, by publication or otherwise, of the Confidential Second Affidavit of Caroline Taylor sworn on 7 July 2023.

9.    Order 8 does not prevent disclosure of information to and between the people identified in orders 7.1 and 7.2 for the purposes of these proceedings.

10.     Order 8 is made under s 37AF of the Federal Court of Australia Act 1976 (on the grounds set out in s 37AG(1)(b) and (c) of that Act).

11.    Order 8 operates for a period of five years.

12.    There is to be no disclosure, by publication or otherwise, of:

12.1    the address of the Respondent referred to in Control 2.1.1 of the confirmed order;

12.2    any future address of the Respondent approved by the AFP pursuant to Control 2.1.2 of the confirmed order; and

12.3    any other part of the proceeding, including preliminary discussion or legal argument, or information derived from the proceedings, which refer to or may disclose these addresses.

13.    Order 12 is made under s 37AF of the Federal Court of Australia Act 1976 (Cth) (on the grounds set out in s 37AG(1)(a), (b) and (c) of that Act).

14.    Order 12 operates for a period of 5 years.

15.    Order 12 does not prevent the disclosure of information to and between the following people for the purposes of these proceedings:

15.1    the presiding judge and necessary staff of this Court;

15.2    persons referred to in s 6(1) of the Australian Federal Police Act 1979 (Cth) and legal representatives of the Australian Federal Police instructed in these proceedings;

15.3    the Respondent and his legal representatives;

15.4    Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)); and

15.5    officers of the foreign agencies identified in the Confidential Second Affidavit of Caroline Taylor sworn on 7 July 2023.

THE COURT NOTES THAT:

16.    This confirmed control order relates to the Respondent, Adam Mathew Brookman.

17.    It 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).

18.    It is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the Respondent by the order is reasonably necessary, and reasonably appropriate and adapted, for the purposes of:

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

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

18.3    preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (s 104.4(1)(d)(iii) of the Criminal Code).

ANNEXURE

1.    [Intentionally left blank]

2.    Control 2 (Specified Premises)

2.1.    You are required to remain at the specified premises between the hours of 11:00 pm and 5:00 am (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.

The specified premises is:

2.1.1.    [REDACTED]; or

2.1.2.    an alternative premises that has been pre-approved in writing by an AFP Superintendent.

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

3.    Control 3 (Prohibited places)

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

3.1.1.    inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there;

3.1.2.    at the residence of any person with whom, by reason of Control 11, you are prohibited from communicating or voluntarily associating;

3.1.3.    any place in Australia outside the state of Victoria, unless:

i.    you contact an AFP Superintendent in writing requesting approval to travel in Australia 14 days prior to the intended departure date, outside the state of Victoria, for a specific period of time; and

ii.    an AFP Superintendent consents to the proposed travel in writing.

4.    Control 4 (Prohibition on leaving Australia)

4.1.    You are prohibited from leaving Australia.

5.    Control 5 (Prohibited groups/financial/appearance and travel activities)

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

Groups

5.1.1.    Forming or joining any group, club or organisation, including any internet based social networking service, without written permission from an AFP Superintendent.

5.1.2.    Forming any corporation, partnership, incorporated association, registering any business names, or operating a business without first notifying an AFP Superintendent in writing.

5.1.3.    Forming prayer groups out of a Mosque, leading prayers or instructing others on leading prayers.

5.1.4.    Attempting to influence any other person in relation to religious or ideological matters including through online or social media.

Financial

5.1.5.    Transferring money, other currency or assets, including crypto currency to another person equal to or exceeding the value of $1500 whether by cash, cheque or electronic transfer without first notifying an AFP Superintendent in writing of your intention to do so and, providing a receipt of payment thereafter, unless required to do so for purposes of employment or education.

5.1.6.    Making any gift, donation, or financial contribution to any organisation, association, entity or charity howsoever described without first notifying an AFP Superintendent in writing of your intention to do so and, providing a receipt of payment thereafter.

Public Appearances

5.1.7.    Presenting at, or appearing as a presenter or speaker at, or appearing on stage at, or providing public endorsement of any other presenter or speaker at, any public gathering that is publicly or privately broadcast via the internet or any telecommunications network, and/or attended by 5 or more people.

5.1.8.    Make any public appearances or statement for publication in any form to any person, or cause any statement to be published by any person on your behalf, in relation to any of the following matters:

i.    carrying out, authorising or permitting violence;

ii.    activities of any terrorist organisation;

iii.    the ideology of or any material published, produced or endorsed by any terrorist organisation;

iv.    use of weapons, firearms, ammunition or explosives;

v.    any of the matters set out in Control 6.1.a;

vi.    adherence to any fatwa, decree, ruling or statement of the following persons:

i.    Ayman al-Zawahiri;

ii.    Osama bin Laden;

iii.    Abu Muhammad al Maqdisi;

iv.    Abu Bakr Al-Baghdadi;

v.    Abu Qatada al-Filistini;

vi.    Said Mansour

vii.    Abu Ibrahim al-Hahimi al-Qurashi, aka Amir Mohammed Abdul Rahman al-Mawli al-Salbi.

Activities Pertaining to Travel

a.    Applying for travel documents for any country.

6.    Control 6 (Prohibition on possessing, storing, producing or distributing documents)

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

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

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

ii.    firearms, ammunition or knives;

iii.    anti-surveillance or counter surveillance;

iv.    execution;

v.    beheading;

vi.    suicide attack;

vii.    bombing;

viii.    terrorist attack;

ix.    assassination;

x.    torture;

xi.    genocide;

xii.    violent jihad;

xiii.    propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or

xiv.    activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).

6.1.2.    Collating, editing, producing or distributing 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.    assassination;

x.    torture;

xi.    genocide;

xii.    violent jihad;

xiii.    propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or

xiv.    activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).

7.    Control 7 (Prohibition on accessing/viewing specific activities)

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

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

7.1.2.    firearms, ammunition or knives;

7.1.3.    anti-surveillance or counter surveillance;

7.1.4.    execution;

7.1.5.    beheading;

7.1.6.    suicide attack;

7.1.7.    bombing;

7.1.8.    terrorist attack;

7.1.9.    assassination;

7.1.10.    torture;

7.1.11.    genocide;

7.1.12.    violent jihad;

7.1.13.    propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or

7.1.14.    activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth),

unless that material is:

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

7.1.16.    published by Al Jazeera, the British Broadcasting Corporation (BBC), CNN, or the Guardian;

7.1.17.    broadcast on Australian free to air television;

7.1.18.    broadcast on Australian pay television;

7.1.19.    shown in a commercial movie cinema; or

7.1.20.    broadcast on one of the following streaming services: Netflix; STAN; Amazon Prime; ABC iView; or SBS On Demand.

8.    Control 8 (Vehicle)

8.1.    You are prohibited from carrying out the following specified activities namely: renting, purchasing, or driving any vehicle which exceeds a gross vehicle mass of 2.5 tonne, unless required for employment purposes, in which case you must notify the AFP Superintendent within 24 hours of becoming aware you need to drive such a vehicle for employment purposes.

9.    Control 9 (Work, training, volunteering and education)

9.1.    You must notify the AFP Superintendent in writing within three days of commencing:

a.    any paid employment; or

b.    volunteer work or unpaid work; or

c.    training or education;

with the exception of current enrolment in C2225 Certificate II in Electrotechnology at RMIT University

9.2.    In notifying the AFP Superintendent, you must submit a written notice to the AFP Superintendent which includes information about the proposed work, volunteering, training or education, including:

9.2.1.    in the case of paid work, details of the person for whom you will be undertaking the work (eg the employer), including their name and place of business, and the nature of the work that will be undertaken.

9.2.2.    in the case of volunteering, details of the person or organisation with whom you will be undertaking the volunteering, including their name and place of operation, and the nature and location of the volunteering that will be undertaken.

9.2.3.    in the case of training or education, details of the person or organisation who will be providing the training or education, including their name and place of business, and the nature of the training or education that will be undertaken.

10.    Control 10 (Prohibition on possessing/using specified articles/substances)

10.1.    You are prohibited from possessing or using, or permitting any person to act on your behalf to possess or use, any of these specified articles or substances, namely:

10.1.1.    ‘firearm’ or ‘cartridge ammunition’ within the meaning of s 3(1) of the Firearms Act 1996 (Vic);

10.1.2.    a 'prohibited weapon' within the meaning of s 3(1) of the Control of Weapons Act 1990 (Vic);

10.1.3.    any quantity of petrol exceeding 4 litres that is not contained in the petrol tank of a vehicle that you have purchased, rented or driven in compliance with Control 8.1;

10.1.4.    any quantity of any chemical which is not consistent with reasonable domestic use or required for employment or education purposes;

10.1.5.    an article or device, not being a firearm, capable of discharging by any means:

i.    any irritant matter in liquid, powder, gas, chemical form or any dense smoke; or

ii.    any substance capable of causing bodily harm;

except for reasonable domestic use or required for employment or education purposes;

10.1.6.    a detonator;

10.1.7.    a fuse capable of use with an explosive or a detonator;

10.1.8.    a knife, in a public place, without reasonable excuse;

10.2.    You are prohibited from possessing or using any thing intended to be used to injure or menace a person or damage property, and from instructing another person to use any thing to injure or menace a person or damage property on your behalf.

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

10.3.1.    purchasing any firearms or ammunition, or permitting any person to act on your behalf to purchase any firearms or ammunition;

10.3.2.    Permitting storage or use of any firearms or ammunition at your place of residence;

10.3.3.    Using any weapon in connection with hunting or related activities. This includes spear fishing but does not include fishing with a net or line.

11.    Control 11 (Non-associates)

11.1.    You are prohibited from communicating or associating with, or attempting to communicate or associate with, directly or indirectly through a third party:

11.1.1.    any person who, to your knowledge, is incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility;

11.1.2.    any person who, to your knowledge, is subject to a continuing detention order or extended supervision order pursuant to Division 105A of the Criminal Code Act 1995 (Cth);

11.1.3.    any person who, to your knowledge, is subject to a control order made under Division 104 of the Criminal Code Act 1995 (Cth);

11.1.4.    any person who, to your knowledge, has been convicted of, or is currently charged with, an offence against:

i.    Part 5.3 of the Criminal Code Act 1995 (Cth);

ii.    the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth);

11.1.5.    any person who, to your knowledge, is located in Morocco, Jordan, The West Bank, Saudi Arabia, Turkey, Iraq, Syria, Afghanistan, Pakistan, Yemen, Sudan, Somalia, Egypt, Philippines or Indonesia.

11.1.6.    any of the following persons:

i.    Momena SHOMA

ii.    Abdullah CHAARANI

iii.    Ahmed MOHAMED

iv.    Khaled TEMSSAH

v.    Hadashah Sa’adat KHAN

vi.    Isa KOCOGLU

vii.    Shayden THORNE

viii.    Murat KAYA

ix.    Robert CERANTONIO

x.    Hatim MOUKHAIBER

xi.    Aisha ALQATTAN

xii.    Taha SEPEHRNIA

xiii.    Eldea TEUIRA

xiv.    Cody BROOKS

xv.    Troy BARNES

xvi.    Nazir SHIRYAR

xvii.    Matthew MATOVIC

xviii.    Michael DARDHA

xix.    Bowe MADDIGAN

xx.    Peter HOWARTH

xxi.    Joseph McDONALD

xxii.    Ziad AMOUCHE

xxiii.    Christopher HEMMING

xxiv.    Mark CONTIN

xxv.    Eshan MAJEDI

xxvi.    Paul DACRE

xxvii.    Antonino GRANATA

xxviii.    Kadir KAYA

xxix.    Wissam FATTAL

xxx.    Ramazan ACAR

xxxi.    Ertunc ERIKLIOGLU

xxxii.    Samed ERIKLIOGLU

xxxiii.    Ari SHERANI

xxxiv.    Hanifi HALIS

xxxv.    Hassan EL SABSABI

12.    Control 12 (Permitted mobile phone)

12.1.    You are prohibited from accessing or using, any mobile telephone device and SIM card other than a single mobile telephone device and SIM card provided to you by an AFP Superintendent or a Police officer acting under an AFP Superintendent’s direction (the permitted mobile phone) for your use.

12.2.    Prior to using the permitted mobile phone an AFP Superintendent and/or a Police officer under their direction, will provide you with the following information in writing:

12.2.1.    the International Mobile Equipment Identity (IMEI) number for the permitted mobile phone;

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

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

12.2.4.    the account credentials to access the permitted mobile phone; and

12.2.5.    the phone number to which the permitted mobile phone will be connected.

12.3.    You are required to do all of the following:

12.3.1.    permit one or more Police officers to inspect, repair, service, replace or access and examine data held within the permitted mobile phone at any reasonable time;

12.3.2.    if there is, or you have set, account credentials for the permitted mobile phone, provide the Police officer/s the account credentials and facilitate the inspection, repair, service, replacement and examination of data held within the permitted mobile phone;

12.3.3.    ensure that the permitted mobile phone, and any equipment necessary for the operation of the permitted mobile phone, are and remain in good working order;

12.3.4.    if you become aware that the permitted mobile phone, or any equipment necessary for the operation of the permitted mobile phone, is not in good working order, notify a Police officer as soon as practicable, but no later than 12 hours after becoming aware; and

12.3.5.    if you set account credentials for the permitted mobile phone, or change the account credentials for the permitted mobile phone, you must provide the new account credentials to the AFP Superintendent, or a Police officer under their direction, as soon as practicable, but no later than 12 hours after changing the account credentials.

12.4.    You must not:

12.4.1.    tamper with, damage or destroy any component of the permitted mobile phone or any equipment necessary for the operation of the permitted mobile phone;

12.4.2.    change, remove, modify or disconnect the SIM card, telecommunication service provider or phone number connected to the permitted mobile phone;

12.4.3.    use, download or install any encryption, obfuscation or encryption services to prevent inspection of, or examination of data held within, the permitted mobile phone;

12.4.4.    delete or alter any applications, emails, text message, electronic message, call history, any data, Internet or application search history, any application chat or communication history stored on or accessible from the permitted mobile phone;

12.4.5.    use any platforms, applications, programs, services or software to alter, conceal, automatically delete or otherwise erase any of the following:

a.    emails;

b.    text messages;

c.    electronic messages;

d.    call history;

e.    data, including but not limited to any chat or communication history, that is stored in or accessible from the permitted mobile phone, or by another person on your behalf (including on any devices or platforms that are not permitted by the conditions of Control 12);

f.    Internet or application search history;

12.4.6.    attempt to do any of the things referred to in Controls 12.4.12.4.1 to 12.4.12.4.5.

12.4.7.    allow or cause any other person (including any employee or person acting on behalf of a telecommunications service provider) to do, or attempt to do any of the things referred to in Controls 12.4.12.4.1 to 12.4.12.4.5.

12.5.    You are prohibited from permitting another person to use or access:

12.5.1.    the permitted mobile phone, except in the following circumstances:

a.    in case of an emergency to contact the Emergency services; and

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

12.5.2.    any mobile telephone device on your behalf, except in the case of an emergency to contact the Emergency services.

12.6.    If the emergency use exceptions in Control 12.5.1 are enlivened, you are required to notify the AFP Superintendent, and/or a Police officer under their direction, as soon as practicable but no later than 12 hours after another person uses or access the permitted mobile phone or another person uses or accesses any mobile telephone device on your behalf and provide:

12.6.1.    sufficient information to identify the person who used or accessed the permitted mobile phone or used or accessed a mobile telephone device on your behalf; and

12.6.2.    the date, time and telephone number/s called;

12.6.3.    an explanation of the nature of the emergency; and

12.6.4.    any other information reasonably requested.

12.7.    Control 12.1 does not apply if the use of another mobile telephone device is solely for the purposes of notifying the AFP Superintendent, and/or a Police officer under their direction of a fault or damage to the permitted mobile phone.

13.    Control 13 (Prohibition on using/accessing a fixed landline telephone)

13.1.    You are prohibited from accessing or using any fixed or landline telephone or facsimile service other than one service that has been approved in writing by the AFP Superintendent for you to access or use, unless in the event of an emergency or if it is required for purposes of employment.

13.2.    To seek approval, you must:

a.    submit a written request to the AFP Superintendent nominating the fixed or landline telephone or facsimile service you wish to use; 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 or facsimile service.

13.3.    You are prohibited from permitting another person to use or access any fixed or landline telephone or facsimile service on your behalf, unless in the event of an emergency.

13.4.    If you use, or another person on your behalf uses, a fixed or landline telephone or facsimile service that has not been approved in writing by the AFP Superintendent, you are required to notify the AFP Superintendent and provide an explanation for the use of that service within 24 hours.

14.    Control 14 (Prohibition on using a public telephone)

14.1.    You are prohibited from accessing or using, or permitting any person to access or use on your behalf, any public telephone except in the case of an emergency, provided that you contact the AFP Superintendent within 24 hours after accessing or using such a public telephone and:

a.    provide sufficient detail to the AFP Superintendent to identify the public telephone that you accessed or used, the date, time and phone number called; and

b.    you explain the nature of the emergency which required you to access or use, or cause another person to access or use on your behalf, that public telephone.

15.    Control 15 (Permitted computer or tablet device)

15.1.    You are prohibited from accessing or using any computer or tablet device (including, but not limited to an XBox, PlayStation, Nintendo etc.) other that the single computer or tablet device provided to you by the AFP (the permitted computer or tablet device) unless you are accessing a computer at your workplace or university solely for the purposes employment or education and do not use it for any other purpose (including browsing the internet for reasons unconnected with your employment or education).

15.2.    Prior to you using the permitted computer or tablet device, the AFP Superintendent, or a police officer under their direction, will provide you with the following information in writing:

a.    the make and model of the permitted computer or tablet device;

b.    the serial number of the permitted computer or tablet device; and

c.    the account credentials associated with the permitted computer or tablet device.

15.3.    You are required to do all of the following:

a.    permit one or more Police officers to inspect, repair, service, replace or access and examine data held within the permitted computer or tablet device at any reasonable time;

b.    if there is, or you have changed, account credentials for the permitted computer or tablet device, provide the Police officer/s the account credentials and facilitate the inspection, repair, service, replacement and examination of data held within the permitted computer or tablet device;

c.    ensure that the permitted computer or tablet device, and any equipment necessary for the operation of the permitted computer or tablet device, are or remain in good working order;

d.    if you change account credentials for the permitted computer or tablet device, you must provide the new account credentials to the AFP Superintendent, or a Police officer under their direction as soon as practicable, but no later than 12 hours after changing the account credentials; and

e.    if you become aware that the permitted computer or tablet device, or any equipment necessary for the operation of the permitted computer or tablet device, is not in good working order, notify a Police officer as soon as practicable, but no later than 12 hours after becoming so aware.

15.4.    You must not:

a.    tamper with, damage or destroy any component of the permitted computer or tablet device or any equipment necessary for the operation of the permitted computer or tablet device;

b.    delete or modify 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 tablet device, or partition any drive;

c.    use, download or install encryption, obfuscation or encryption services to prevent examination of data and where applicable are required to provide any account credentials or access data to facilitate the examination of the permitted computer or tablet device;

d.    attempt to do any of the things referred to in Control 15.4.a, Control 15.4.b or Control 15.4.c;

e.    allow any other person to do, or attempt to do any of the things referred to in Control 15.4.a, Control 15.4.b or Control 15.4.c.

15.5.    You are prohibited from permitting another person to use or access:

a.    the permitted computer or tablet device; or

b.    any computer or tablet device on your behalf.

15.6.    Control 15.1 does not apply to computers or tablet devices comprising machines publicly available for self-service use (self-service machines), including but not limited to a self-service checkout in a supermarket/store, an automated teller machine (ATM), a global positioning system (GPS) device and self-service ordering kiosks in fast food restaurants, provided that your access and use of any such self-service machine is limited to the machine’s intended use and does not involve using it to browse the internet or send electronic messages unrelated to the business to which it relates.

16.    Control 16 (Permitted Platforms)

16.1.    You must not use or access, or cause any person to use or access on your behalf, applications or computer programs (collectively, platforms), unless:

a.    the platform has been installed to the permitted mobile telephone, or permitted computer or tablet device, at the time it is first provided to you, and you use or access the platform on the permitted mobile telephone, or permitted computer or tablet device, only; or

b.    prior to installing, using or accessing a platform, you obtain the permission of the AFP Superintendent to install, use or access the platform on the permitted mobile telephone, or permitted computer or tablet device; or

c.    the platform is required and solely used for education or employment purposes.

16.2.    To seek approval under Control 16.1.b to install, use or access a platform, you must:

a.    submit a written request to the AFP Superintendent which nominates the platform and the permitted mobile telephone or permitted computer or tablet device on which you will install, use or access the platform; and

b.    provide any other information required by or on behalf of the AFP Superintendent in relation to the platform.

16.3.    Approval to install, use or access a platform under Control 16.1.b may be granted subject to conditions and may be amended or revoked by the AFP Superintendent. Any conditions, amended conditions or revocation must be in writing.

16.4.    You must not use or access, or cause any person to use or access on your behalf:

a.    any Voice Over Internet Protocol (VOIP) service;

b.    any internet telephony or broadband telephony phone service;

c.    any internet messaging service;

d.    any Virtual Private Network (VPN);

e.    any encrypted service, application or function designed to, or which purports to, disguise or conceal any function of any application, including but not limited to incognito or hidden modes;

f.    any Internet browser-based game without first obtaining the permission of the AFP Superintendent to use, access or play that game.

16.5.    To obtain the permission under Control 16.4.f. you must:

a.    submit a written request to the AFP Superintendent which nominates the Internet browser-based game or games you seek permission to use, access, or play; and

b.    provide any other information required by or on behalf of the AFP Superintendent in relation to the game or games.

16.6.    Controls 16.1 and 16.4 do not apply to the use of, or access to:

a.    a website which includes an ‘instant chat’ function that allows a visitor to the website to send messages to, and receive messages from, the website host solely for the purpose of obtaining or providing customer service;

b.    any platform, VOIP or website for the purpose of participating in any proceeding in an Australian court to which you are a party or witness;

c.    any platform approved by the AFP Superintendent under control 16.1.b; and

d.    any Internet browser-based game approved by the AFP Superintendent under 16.4.f.

17.    Control 17 (Permitted Internet Service)

17.1.    You are prohibited from using or accessing any Internet service other than the Internet service provided to you by the AFP through the permitted mobile phone and/or the permitted computer or tablet device, for you to use and access (the permitted Internet service), with the exception 17.2.

17.2.    You may use the RMIT University WiFi on the permitted computer or tablet device or any university computer that is being used for the purpose of education and in accordance with 15.1.

17.3.    You must not:

a.    connect to, use or access any wireless (WiFi) network or connection, including the WiFi network or connection enabled from the specified premises or any publicly available WiFi network or connection;

b.    permit another person to use or access the permitted Internet service;

c.    permit another person to use or access any other Internet service on your behalf;

d.    use a virtual private network (VPN) service;

e.    use the TOR network; and

f.    access any Darknet services (denoted by “onion” top level domain suffix).

17.4.    Control 17.1 and Control 17.2.a do not prohibit the use and access to:

a.    an automated teller machine;

b.    a computer or tablet device, connected to an Internet service, owned by a business or government agency which is made available for your to use to facilitate contact tracing, the ordering or sale of food or consumer products or the provision of a service; or

c.    a smart television, which is used by you only for the purposes of watching the services identified out in Controls 7.1.16 to 7.1.20. (inclusive).

18.    Control 18 (Permitted email account)

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

a.    email account S4057923@student.rmit.edu.au for the purposes of education;

b.    an account that has been approved in writing by an AFP Superintendent, or person authorised by the AFP Superintendent for the purposes of this Control, specifically a Gmail account, for you to access and use (the permitted email account); and

c.    a necessary work or education email account that has been approved in writing by an AFP Superintendent for you to access and use.

18.2.    To seek a permitted email account:

a.    you must submit a written request to the AFP Superintendent; and

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

c.    you are exempt from 18.1 a. for the process of creating a permitted email account in accordance with 18.1 b.

18.3.    You are required to do all of the following:

a.    If there is, or you have set up, account credentials for the permitted email account, provide the AFP Superintendent, and/or Police officer/s under their direction, the account credentials;

b.    If you change the account credentials for the permitted email account, you must provide the new account credentials to the AFP Superintendent, or a Police officer under their direction, as soon as practicable, but no later than 12 hours after changing the account credentials.

18.4.    You must not:

a.    Permit another person to use or access the permitted email account;

b.    Cause any other person to use or access any email account of your behalf;

c.    Use, download or install any encryption, obfuscation or encryption services to prevent inspection of, or examination of data held within, the permitted email account;

d.    Attempt to do any of the things referred to in Control 18.4.a, Control 18.4.b or Control 18.4.c.

19.    [Intentionally left blank]

20.    Control 20 (Participation in counselling)

20.1.    You are required to consider, in good faith, participating in counselling or education relating to your psychological and physical wellbeing, with a suitably qualified professional, for at least 60 minutes per week.

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

21.    Exemption – requested by you

21.1.    You may request the AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Control 2.1, 2.2, Control 6.1, Control 7.1, Control 8, Control 11.1.e, and 12.1.

21.2.    To request an exemption, you must:

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

i.    identifies the Control in respect of which you seek an exemption;

ii.    explains the extent to which you seek to be exempted from the Control; and

iii.    explains your reason(s) for seeking the exemption; and

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

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

21.4.    You must comply with all of the conditions specified in writing by the AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.

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

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

22.    Exemption –initiated/granted without request

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

22.2.    The AFP Superintendent may grant an exemption subject to reasonable conditions specified in writing provided on reasonable notice to you and to which you consent in writing.

22.3.    If an exemption is granted and consented, you must comply with all of the conditions specified in writing by the AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.

23.    Interpretation

23.1.    In this Interim Control Order:

a.    Account credentials means ‘account credentials’ within the meaning of s 3ZZUK of the Crimes Act 1914 (Cth). It means information that a user of an online account, electronic device, or any electronic equipment, requires in order to access or operate the account, electronic device, or electronic equipment, and includes, for example, each of the following:

i.    A username;

ii.    A password;

iii.    A PIN;

iv.    Swipe pattern

v.    A security question or answer;

vi.    A biometric form of identification

b.    AFP Member means a ‘member’ or ‘special member’ of the Australian Federal Police, as defined by the Australian Federal Police Act 1979 (Cth).

c.    AFP Superintendent means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter-Terrorism and Special Investigations Command, and includes any AFP Member authorised to perform duties or functions or otherwise act on behalf of a Superintendent within the Counter Terrorism and Special Investigations Command in connection with this control order.

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

e.    Emergency services means:

a.    Victoria Police;

b.    Ambulance Victoria;

c.    the Victorian Country Fire Authority

d.    Fire Rescue Victoria

e.    the Victorian SES;

f.    the AFP; or

g.    the Poisons Information Centre.

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

g.    Police officer means an AFP Member, or a ‘police officer’ within the meaning of the Victoria Police Act 2013 (Vic).

24.    Suspension of controls while in custody

24.1.    Controls 1-23 do not apply during any period in which you are held by or on behalf of an officer in prison or remand centre of the Commonwealth, a State or a Territory.

24.2.    Controls 1-23 resume their application at the conclusion of any period referred to in Control 24.1.

25.    Dis-application clause for de-radicalisation programs, treatment and engagement with authorities

25.1.    Control 5.1(h) does not apply to:

a.    anything you say in connection with your participation in counselling or education relating to your psychological and physical wellbeing in accordance with Control 20;

b.    anything you say in connection with your participation in a disengagement program such as the Community Integration Support Program (CISP); or

c.    anything you say in connection with engagement by you with members of the Victoria Police CVE Unit.

25.2.    Controls 6.1(a) and 7.1 do not apply to the possession or viewing of documents that are required to be possessed or viewed by you by:

a.    a member of the Victoria Police CVE Unit; or

b.    a mentor assigned to you by the Community Integration Support Program (CISP).

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 March 2024, I made orders pursuant to s 104.14(7)(c) of the Criminal Code, a schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code) that the interim control order made in relation to the respondent on 5 October 2023 is confirmed without variation in the terms of the confirmed control order set out in the annexure to these orders and that the confirmed control order be in force until and including 5 July 2024. These are my reasons for making the orders.

2    The applicant is Commander Caroline Taylor who is a member of the Australian Federal Police and with the substantive rank of Commander, Operations and Support, Northern Command. The respondent is Mr Adam Mathew Brookman.

3    There is one difference between the interim control order and the confirmed control order as to the basis of the orders. In the interim control order, it is recorded that the Court was satisfied on the balance of probabilities of each of the following: (1) that the respondent has been convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Criminal Code; and (2) that the respondent has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country (s 104.4(1)(c)(vii) of the Criminal Code). By contrast, the confirmed control order records that the Court was 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), but it does not make any reference to s 104.4(1)(c)(vii) of the Criminal Code. That is not because the applicant could not establish that ground, but rather because she did not consider that it was necessary that she do so.

4    As far as satisfying the requirement of s 104.4(1)(c)(iv) of the Criminal Code that the offence relates to terrorism, a terrorist organisation or a terrorist act is concerned, the applicant relies on the respondent’s conviction for performing services for any other person or any body or association of persons, with the intention of supporting or promoting the commission of an offence against s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) and four offences of intentionally breaching a control order contrary to s 104.27 of the Criminal Code.

5    With respect to the interim control order, I was satisfied that the senior Australian Federal Police member had requested it in accordance with s 104.3. With respect to the confirmed control order, I was satisfied that an election had been made under s 104.12A and I was satisfied on the balance of probabilities that s 104.12 and subsection 104.12A(2) had been complied with in relation to the order.

6    The purpose of a control order is to protect the community and not to punish the respondent. That can be seen from s 104.1 and s 104.4(1)(d)(iii)–(v) which provide that both the objects of the Division and the test for each and every condition in a control order is the protection of the public, the prevention of the provision of support for or the facilitation of terrorist acts or the prevention of the provision of support for or the facilitation of the engagement in a hostile activity in a country. The Court must be satisfied that each and every condition is reasonably necessary and reasonably appropriate and adapted, for the purpose of one or more of these purposes. That the purpose of a control order is the protection of the community and not to punish the respondent is made clear in the authorities: Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 (Thomas v Mowbray) at [79] per Gummow and Crennan JJ; McCartney v EB [2019] FCA 183; (2019) 263 FCR 170 at [18] per Wigney J. As the applicant submitted, the protective purpose of the provision in Division 104 supports a more beneficial (to the applicant) and less restrictive construction of its provisions than would be the case if it contained penal provisions.

7    In considering whether the Court is satisfied on the balance of probabilities that, for example, making the order would substantially assist in preventing a terrorist act, the Court is entitled to rely on matters of common knowledge. In Thomas v Mowbray, Gummow and Crennan JJ said the following (at [92]):

The federal judges exercising the jurisdiction conferred by the interim control order provisions will bring to their consideration of whether “making the order would substantially assist in preventing a terrorist act” (s 104.4(1)(c)(i)) and of the particular form of an order, both matters of common knowledge, some of which we have referred to above, and the facts and circumstances disclosed in the evidence on the particular application for an order. From consideration of the legislation on a case by case basis it may be expected that guiding principles will emerge, a commonly encountered phenomenon in judicial decision-making.

8    The applicant submitted that the application was brought, in part, on the basis that the respondent is a potential perpetrator of a terrorist act. However, even if the Court is not satisfied of this, the applicant submits that the order sought may still “substantially assist” in preventing a terrorist attack. As Gummow and Crennan JJ said in Thomas v Mowbray, the person subjected to the control order may be someone other than the prospective perpetrator of a terrorist act, that is because the making of the order may nevertheless be of substantial assistance in preventing that act.

9    The applicant submitted that there is no fixed meaning of “substantial” or “substantially” and the case law does not suggest a quantitative or proportional assessment. In different context, it has been held to mean “not trivial or minimal” or “more than merely insubstantial or insignificant”. The applicant submits that in light of the protective purpose of Division 104, such a meaning is appropriate in construing s 104.4(1)(c)(i).

10    With respect to the requirement that the Court be satisfied on the balance of probabilities that each of the conditions and the combined effect of all of the conditions is reasonably necessary, and reasonably appropriate and adapted, in Thomas v Mowbray, Gleeson CJ (at [19]) said that a requirement of that kind would sometimes be described as a requirement of proportionality and his Honour went on to say:

Judgments about proportionality often require courts to evaluate considerations that are at least as imprecise as those involved in formulating a control order.

11    Justices Gummow and Crennan said that s 104.4(1) requires in para (d) that each of the proposed obligations, prohibitions and restrictions must be measured against the requirements of “reasonably necessary” and “reasonably appropriate and adapted”. These matters are to be weighed against the impact upon the circumstances of the person in question as a “balancing exercise” (s 104.4(2)). Their Honours also went on to refer to McCulloch v Maryland (1819) 4 Wheat 316 at 413–414 [17 US 159 at 203] and said (at [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).

The Evidence

12    The applicant relies on the following evidence: a detailed statement of agreed facts within the terms of s 191 of the Evidence Act 1995 (Cth); substantial sections of the open affidavit of Caroline Taylor affirmed on 7 July 2023 ([1]–[2], [7], [41]–[49], [51]–[71], [72]–[97], [98]–[107], [109]–[116] (except insofar as these paragraphs relate to condition 1 which is no longer sought), [117]–[158], [159]–[164] (except insofar as these paragraphs relate to condition 19 which is no longer sought) and [168]–[170]); and the affidavit of Commander Taylor affirmed on 22 September 2023. The respondent did not file any evidence to be used at the confirmation hearing.

13    The respondent indicated that he did not oppose the confirmation of the interim control order in the same terms. He accepted that the Court could be satisfied on the balance of probabilities that he had been convicted in Australia of an offence relating to terrorism on the basis that he had been convicted in Australia of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act. He also accepted that it was open to the Court to find that each of the obligations, prohibitions and restrictions proposed are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act, or preventing the respondent from supporting or facilitating a terrorist act or a hostile activity for the purposes of s 104.4(1)(d) of the Criminal Code.

The Requirement in s 104.4(1)(c)

14    As I have said, the applicant relies on the fact that the respondent has been convicted in Australia of an offence relating to terrorism. On 14 April 2021, the respondent pleaded guilty to one count of perform services in support or promotion of the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act contrary to s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act.

15    There was a previous interim control order against the respondent made by the Court (Snaden J) on 6 July 2021 which was confirmed on 31 January 2022 (Booth v Brookman [2021] FCA 767; Booth v Brookman (No 3) [2022] FCA 42). In between the two events, the interim control order was varied as a result of the respondent being taken into custody (Booth v Brookman (No 2) [2022] FCA 30).

16    On 3 February 2023, the respondent pleaded guilty to, and was convicted and sentenced for four charges of breaching the first interim control order.

17    The applicant submits that the Foreign Incursions offence and the offences of breaching the first interim control are offences “relating to terrorism” within s 104.4(1)(c)(iv). That phrase is not defined in the Criminal Code and nor is the word, “terrorism”. As Anastassiou J noted in Booth v Kaya [2020] FCA 25 at [13], there is no internationally accepted definition of “terrorism” as what would constitute a “terrorism offence”.

18    The Foreign Incursions offence has been recognised as an offence relating to terrorism in the case of the first interim control order (Booth v Brookman [2021] FCA 767 at [2] and Booth v Brookman (No 3) [2022] FCA 42 at [11]) and I see no reason not to take a similar approach in this case.

19    With respect to the offences involving contraventions of the first interim control order, the Crimes Act 1914 (Cth) defines “terrorism offences” to include offences against Part 5.3 and 5.5 of the Criminal Code. The offences involving contraventions of the first interim control order (i.e., s 104.27(1)) are Part 5.3 offences and are, therefore, “terrorism offences” within the definition. They meet the description of offences “relating to terrorism” within s 104.4(1)(c)(iv).

20    In the circumstances, I do not need to deal with the applicant’s assertion that the circumstances fall within s 104.4(1)(c)(vii) other than to say that the agreed facts in para 6 and paras 35 to 41 inclusive would appear to support this contention (see also McCartney v EB (No 2) [2019] FCA 184 at [18] per Wigney J).

The Requirement in s 104.4(1)(d)

21    The applicant referred to the fact that the Court is required to make an assessment of the risk of a matter occurring in the future in deciding whether the conditions proposed are reasonably necessary and reasonably appropriate and adapted for the purposes set out in s 104.4(1)(d).

22    In that regard, I was referred to what the plurality said in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (at 575):

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

23    Similar reasoning has been applied in the context of control orders under Part 5.3 of the Criminal Code.

24    The applicant relies on a number of matters in support of the conditions she proposes.

25    First, she relies on the fact that the circumstances which formed the basis of the conviction against s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act was that the respondent by 14 March 2014 had travelled to Idlib, Syria via Turkey and he remained in Syria until he crossed the border back to Turkey at some point between 19 November 2014 and 27 January 2015. The respondent carried out guard duty, undertook training, undertook reconnaissance, maintained weapons and provided medical services for a group of men who were foreign fighters. He intended to support or promote the Chechen group(s) in their engagement in hostile activity in Syria within the charge period. These conclusions are based on the SOAF.

26    Secondly, the applicant relies on the respondent’s online activities on Facebook and Instagram during the offending period and while he remained in Syria in 2014 and, in particular, his posts which showed: (1) support for the cause of Islamic State and combatants opposed to the Syrian Government (SOAF [39.1], [42.1] and [43.1]); (2) glorified violence carried out by those opposition forces, in particular against “kuffar” (disbelievers) (SOAF [42.1], [37.6], and [42.2]); and (3) refers approvingly to violent jihad and to “mujahideen”, including by specifically endorsing martyrdom (SOAF [37.6], [37.10], [40.1], [41.1], [42.1], [42.3]–[42.5], [42.7], [42.8], [42.11] and [43.2]). I agree that matters in the SOAF support the propositions advanced by the applicant.

27    Thirdly, with respect of the offences of contravening conditions in the first interim control order, the SOAF supports the conclusion that the respondent continues to pose a risk of supporting or facilitating a terrorist act, or supporting or facilitating the engagement in a hostile activity in a foreign country. The respondent has repeatedly violated specific controls outlined in the order. He deleted internet history on his permitted devices multiple times, including instances related to accessing pornographic material and attempting to conceal his online activities by turning off YouTube History. He accessed various social media platforms without obtaining written approval as required by the first interim control order demonstrating a consistent pattern of non-compliance. The respondent’s online activities during the period of contravention of the first interim control order contravention included accessing content related to sensitive topics such as the conflict in Afghanistan. As the applicant submitted, this behaviour indicates a potential for involvement in contentious or potentially harmful discussions or actions related to these subjects, posing a risk to individuals or groups associated with such topics. The respondent accessed electronic media depicting firearms, ammunition, execution, extreme violence, sexual violence, and rape, including animated pornographic comics containing explicit violence. These actions raise concern about his consumption of and potential desensitisation to violent and inappropriate content. Such exposure can contribute to desensitisation towards violence and potentially increase the likelihood of engaging in violent behaviour.

28    Fourth, the SOAF indicates that the respondent has continued to dispense religious advice. Although there is no evidence that that advice related to terrorism or extremist ideology, individuals with a history of extremism can utilise religious preaching to promote extremist ideologies and influence vulnerable individuals towards radicalisation. The risk is exacerbated by the respondent’s profile as a person who has expressed extremist views and been on the front line in Syria which is likely to increase his ability to groom vulnerable individuals.

29    Fifth, the respondent’s association with Momena Shoma suggests that he is an ongoing risk. The lengthy section in the SOAF in relation to Ms Shoma and the respondent’s relationship with her supports the following conclusions. Ms Shoma was convicted on 29 January 2019 of engaging in a terrorist act contrary to s 101.1 of the Criminal Code and was sentenced to 42 years imprisonment with a non-parole period of 31 years and 6 months. She is currently serving her sentence at the Dame Phyllis Frost Centre and is eligible for parole in 2050. Ms Shoma arrived in Australia as an international student on 1 February 2018. She engaged in an act of terrorism in Mill Park, Victoria on 9 February 2018. At the time, Ms Shoma was residing at a “homestay” residence when she armed herself with a kitchen knife and stabbed the owner of the residence whilst he was asleep next to his five year old daughter. When interviewed by investigators, Ms Shoma admitted that she had travelled to Australia with the intent to undertake an act of terrorism. On 31 May 2019, the respondent initiated mail correspondence with Ms Shoma. This was after she was convicted and before she was sentenced. It is apparent that the respondent made a deliberate effort to establish a relationship with someone involved in terrorist activities. On 22 October 2019, the respondent wrote to Ms Shoma expressing his opinion and admiration for her. On 26 October 2019, he again wrote to Ms Shoma proposing that the two get married. He said that it was obvious that he and Ms Shoma have the same views on religion and morality and he recommended that she pray to Allah about it before making a decision so that they can be sure they are pleasing Allah. On 3 August 2019, Ms Shoma wrote to the respondent expressing her disdain about chaplains and how she refuses to renounce her extremist beliefs. She wrote a further letter to the respondent on that date in which she spoke in favour of Jihad. On 27 September 2019, Ms Shoma wrote a letter to the applicant in which she said that she continued to admire the respondent’s faith and commitment to Islam, Jihad and his family. On 6 October 2019, Ms Shoma wrote to the respondent expressing her view that martyrdom is a victory and an obligation. On 7 March 2020, the respondent sent Ms Shoma, through the prison mail system, copies of chapters of an unknown book which talks about topics such as Jihad and martyrdom.

30    Ms Shoma committed a second terrorist attack against an inmate whilst in custody and on 29 June 2021, she entered pleas of guilty to charges of engaging in a terrorist act on 30 October 2020 contrary to s 101.1 of the Criminal Code, and being a member of a terrorist organisation, namely Islamic State, knowing that the organisation was a terrorist organisation, between on or about 4 July 2019 and on or about 30 October 2020 contrary to s 102.3 of the Criminal Code.

31    On 12 April 2021, which was two days before the respondent entered a plea of guilty to the Foreign Incursion offence, the respondent wrote a letter to Ms Shoma to end their relationship. The respondent criticised the use of violence against innocent civilians, but also referenced a Quranic verse about legal retribution and the applicant contends that this indicated a willingness to justify or rationalise violence under certain circumstances. I accept the applicant’s submission that the respondent’s continued engagement with Ms Shoma is extremely concerning.

32    Sixth, as the applicant correctly submits, there is no cogent evidence upon which the Court can act to support the view that the respondent’s beliefs have changed since he committed the terrorism offences. To the contrary, there is significant evidence to support the inference that the respondent’s extremist ideology has not changed. Whilst in prison, the respondent sought out and connected with inmates who had recently converted to Islam. Whilst there is no evidence that he attempted to radicalise any of these inmates, his role in custody in providing religious advice demonstrates the potential ability he has to indoctrinate others.

33    The respondent was released from the Melbourne Remand Centre on 5 May 2023 and is currently in the community. He continues to be a voluntary participant of the community integration support program (CISP) since his release. Since his release, the respondent has done the following: (1) actively taken steps to obtain his driver’s licence; (2) visited his mother regularly; (3) seen a CISP psychologist on a regular basis; (4) engaged with a social worker who has assisted him with issues relating to housing and attempts to find employment; (5) indicated a desire to see his children one day in the future; (6) advised Victoria Police of a change in his address; (7) participated in a course which will allow him to work on building sites in Victoria; and (8) started a pre-electrical apprenticeship course at RMIT Bundoora which is a six month full-time course. There are other signs referred to in the agreed facts at [87]–[89] which are positive. However, insufficient time has passed to conclude that the respondent’s ideology or risk have (as the applicant puts it) “sufficiently changed”.

34    In Commander Taylor’s open affidavit, she expresses the following opinion:

In my opinion, the Respondent poses a significant risk to the community of supporting or facilitating a terrorist act in Australia or overseas, or supporting or facilitating the engagement in a hostile activity in a foreign country. The consequences if this risk materialises are very serious. This is particularly so having regard to the ability of lone offenders to carry out successful terrorist attacks and cause serious damage and loss of life without requiring significant knowledge, resources or sophisticated equipment.

I accept Commander Taylor’s opinion in light of her extensive background and experience as outlined in Part IV of her affidavit. I have also had regard to Commander Taylor’s evidence with respect to each and every one of the controls that appears in Part VII of her open affidavit ([98]-[170]). Again, I place considerable weight on her opinions and I consider that the controls are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act and/or preventing the provision of support for, or the facilitation of, a terrorist act or the engagement in a hostile activity in a foreign country.

35    It was for these reasons that I made the interim control order and then confirmed that order.

Associate:

Dated:    15 April 2024