Attorney-General v Hadashah Sa'adat Khan

3 The Act requires that the court have regard to the object of the Part which is:

The object of this Division is to protect the community from serious Part 5.3 offences by providing that terrorist offenders who pose an unacceptable risk of committing such offences are subject to:

(a) a continuing detention order; or

(b) an extended supervision order.

4 The defendant pleaded guilty to providing support or resources to a terrorist organisation (Islamic State) contrary to s 102.7(1) of the Code, by facilitating the entry of an 18 year old man into Syria to join Islamic State, including advising the man what he needed to do to enter Syria and to join Islamic State and by communicating with two other intermediaries to facilitate that outcome (the index offence). A summary of the material facts relied upon for the purposes of sentencing was set out in the ISO reasons. In the County Court the defendant was sentenced on the index and another offence to a total of 2 years and 6 months' imprisonment with a non-parole period of 1 year and 11 months. Because substantial time in pre-sentence detention was declared as time served, the defendant completed the head sentence some 2½ months after she was sentenced on 26 August 2022. In those circumstances, she did not become eligible for parole.

5 On 25 August 2022, I imposed an interim supervision order on the defendant pursuant to s 105A.9A(4) of the Code, to operate on her release from custody until 22 September 2022. At that time, I fixed the hearing of the application for the ESO to commence on 7 November 2022. On 13 September 2022, I imposed a further interim supervision order on the defendant, on substantially the same conditions, operative until 20 October 2022. On 17 October 2022, I again imposed an interim supervision order on the defendant on substantially the same conditions operative until 17 November 2022. The application for the ESO was determined prior to the expiry of the last ISO.

6 In reasons for judgment provided on 31 August 2022,[2] I set out the evidence that had been placed before the court on the application at that stage. I explained why I was satisfied that the court's jurisdiction to determine whether to make an ESO had been enlivened by a proper application and that the statutory preconditions had been met. I explained why I was satisfied that the defendant is a 'terrorist offender' within the meaning of ss 105A.2 and 105A.3(1) of the Code and I explained why I was satisfied that an ISO ought to be imposed on the defendant pending the determination of the application for an ESO. In summary I accepted the assessment of Dr Dewson that Ms Sa'adat Khan posed an unacceptable risk of committing a serious Part 5.3 offence. I addressed each of the proposed conditions and the statement of mitigating circumstances, concluding, after some tweaking, that each condition to be imposed on Ms Sa'adat Khan was reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk.

7 The statutory preconditions to the making of an ESO are:

(a) The Plaintiff is 'the AFP Minister' within the meaning of s 100.1 of the Criminal Code, being the Minister administering the Australian Federal Police Act 1979 (Cth) (105A.5(1)).

(b) Ms Sa'adat Khan is a 'terrorist offender' within the meaning of ss 105A.2 and 105A.3(1) of the Criminal Code.

(c) The application was made on 19 August 2022, being not more than 12 months before Ms Sa'adat Khan's sentence of imprisonment ended, as required by s 105A.5(2)(a) of the Criminal Code.

(d) The application included the matters required to be included pursuant to s 105A.5(3) of the Criminal Code, being:

(i) the reports and documents on which the Minister intends to rely at the time of the application;

(ii) a copy of material and a statement of facts that the Minister is aware of that would reasonably be regarded as supporting a finding that the order should not be made;

(iii) information about Ms Sa'adat Khan's age;

(iv) a request that the ESO be in force for a period of three years;

(v) a copy of the proposed ESO conditions and an explanation as to why each of the proposed conditions should be imposed on Ms Sa'adat Khan;

(vi) a statement of any facts of which the plaintiff is aware relating to why those conditions should not be imposed on Ms Sa'adat Khan;

(vii) a copy of the report obtained by the plaintiff under s 105A.18D.

(e) The Plaintiff gave a copy of the application to the defendant's legal representative on 19 August 2022, and to Ms Sa'adat Khan personally on 22 August 2022, as required by s 105A.14A of the Criminal Code.

8 These pre-conditions are satisfied. I will say a little more about experts' reports (s 105A.6 refers) in due course.

9 When the hearing of the application was due to commence, the legal representatives for the plaintiff and the defendant sought time to discuss the evidence to be adduced on the application and to refine the need for cross-examination of witnesses. The following morning the plaintiff's counsel announced that a revised form of ESO was now being sought and the defendant's counsel announced that, while his client did not consent to the imposition of an ESO on her, he was instructed not to make any submissions in opposition to the ESO that was now being sought or the conditions that would be imposed on the defendant by the order.

10 Notwithstanding this development, the Code requires (s 105A.7A) that the court may make an ESO, after having regard to matters in accordance with s 105A.6B, and on being satisfied on the balance of probabilities, and on the basis of admissible evidence, that the defendant poses an unacceptable risk of committing a serious Part 5.3 offence. Further, the court may make an order subjecting the defendant to conditions on being satisfied on the balance of probabilities that each of the conditions, and the combined effect of all of the conditions to be imposed on the defendant by the order, is reasonably necessary and reasonably appropriate and adapted, for the purpose of protecting the community from that unacceptable risk. The Code also requires that the court state the reasons for its decision (s 105A.16).

11 I am satisfied that on the balance of probabilities, on the basis of admissible evidence, the defendant poses an unacceptable risk of committing a serious Part 5.3 offence (s 107A(1)(b)). Further, I am satisfied on the balance of probabilities, that each of the conditions, and the combined effect of all the conditions, to be imposed on Ms Sa'adat Khan, is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from that unacceptable risk.

12 I have so concluded for the following reasons on the basis of the tendered evidence and exhibits, being:

(a) Tabs D to R of the Court Book, dated 23 August 2022 (various affidavits and exhibits);

(b) Supplementary Court Book, dated 4 November 2022 (various affidavits and exhibits);

(c) Further supplementary affidavit of Simone O'Mahony dated 4 November 2022;

(d) Affidavit of Peta Lowe dated 6 November 2022; and

(e) Statement of agreed facts dated 4 November 2022.

13 The critical question on this application is whether the defendant poses an unacceptable risk of committing a serious Part 5.3 offence. To answer this question, the court must identify the nature of the serious Part 5.3 offence in contemplation and its possible consequences and the circumstances that permit an assessment of the degree of risk and whether that degree of risk is unacceptable. The object of the Division provides a foundation for the resolution of the question.

14 Opinions from two experts, Dr Chelsey Dewson and Ms Peta Lowe, were tendered, although neither expert was cross-examined. Dr Dewson, who is a relevant expert within the meaning of s 105A.2 of the Code, has significant relevant experience and her report was tendered by the plaintiff as the report required by s 105A.6.

15 As to the concept of 'unacceptable risk', in the ISO reasons I stated:

The concept of unacceptable risk of committing a serious Part 5.3 offence is a flexible concept calibrated to the nature and degree of the risk and adaptive to the circumstances of each particular case.[3] The critical assessment is the combination of the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. The gravity of the consequences will ordinarily be the critical factor in the assessment.

The statutory text, in speaking of "a serious Part 5.3 offence", does not link the concept of unacceptable risk to any specific individual offence. It is sufficient to identify the risk as that of committing one or more serious Part 5.3 offences.[4]

16 I accept Dr Dewson's opinion that a serious Part 5.3 offence that might in the future be committed is offending of a similar nature to the index offence, namely providing support to a terrorist organisation by assisting or supporting others to engage in violent acts abroad in contravention of s 102.7 of the Code.

17 Dr Dewson went further, identifying that other forms of offending conduct might be possible, the consequences of which would be more grave than the index offence. However, I find that the risk that the defendant might engage in those other forms of conduct was clearly more remote and quite possibly too remote to be real rather than fanciful. It is not necessary that I make any concluded findings about such matters, as I am satisfied that the risk that the defendant might in the future engage in conduct of a similar nature to the index offence is, as I will explain, sufficient for present purposes.

18 Identifying whether a risk may eventuate and whether that risk is unacceptable involves an assessment of the combination of the degree of likelihood of the offending and the seriousness of the consequences if the risk eventuates. The difficult task of conducting such an assessment - in relation to the more serious but more remote possibilities that Dr Dewson raised, derived from an historical assessment of the defendant's conduct and circumstances, and determining whether this risk is unacceptable in the context of the purpose of the Division - can wait for another day.

19 That said, and bearing in mind that the court did not have the benefit of a contested hearing, were it necessary to determine the issue, I would not be satisfied that there is a realistic risk that the defendant would perpetrate a serious Part 5.3 offence other than of the kind exemplified by the index offence. I would not assess the risk of future offending as unacceptable by reference to the possibility of such conduct.

20 Ms Lowe, who assessed the defendant at the request of her solicitor, is also a relevant expert within the meaning of s 105A.2 of the Code, with significant relevant experience. Ms Lowe did not directly assess the specific form that any future offending might take, if the defendant were to reoffend.

21 I should pause to say that I have carefully considered the sentencing judge's reasons. Importantly, although the material before the judge left him in an equivocal state about whether the defendant had renounced her adherence to violent jihad and exhibited genuine remorse, enabling a conclusion that she was well on the path to deradicalisation, his Honour considered that the defendant's criminality fell towards the 'low end of the scale'. I consider that the possible conduct that might constitute a serious Part 5.3 offence, should the defendant reoffend, must be similarly characterised.

22 Turning then to risk, the plaintiff drew my attention to Dr Dewson's observations concerning the risk factors that contributed to her assessment. Dr Dewson observed:

There is evidence to suggest that Ms Sa'adat Khan accessed extremist material within the community and although she reportedly stopped watching if they became too violent, I believe that this would still have gone some way in desensitizing Ms Sa'adat Khan to the use of violence. Further, it likely fuelled her perceived grievances at the time. There is no evidence that she had identified a target for an attack, expressed any intent to commit an act of violent extremism, nor was she making plans or preparations for such. Her offending, however, reflected a willingness to support people engaged in acts of violence and intent to assist them in facilitating this. Ms Sa'adat Khan had ongoing contact (via the internet) with violent extremists and sympathizers of violent extremists. She established a relationship in custody with an individual with a history of violent extremism and her conduct within this relationship (i.e., within letters) suggested an ongoing adherence to her extremist beliefs. Within her correspondence, Ms Sa'adat Khan makes reference to martyrdom and speaks of this in an honourable way. It doesn't appear, however, that she was herself willing to die for her cause and she strongly denied this at the time of the interview. In my mind, Ms Sa'adat Khan is highly susceptible to influence, control and indoctrination, making this one of her primary risk factors moving forward.

23 Dr Dewson assessed the defendant's risk of committing a terrorism offence as 'low-moderate', explaining:

Ms Sa'adat Khan is assessed as highly susceptible to influence, control and indoctrination. She hasn't yet participated in any offence-specific intervention (as this hasn't been available to her) although verbalised her motivation for such in the future. She has outstanding treatment needs relating to her mental health, and to date has reportedly found clinical intervention to have minimal impact on her symptoms. She is returning to a similar environment in which she lived at the time of the offence, although appears to have support from her family to live a law-abiding lifestyle.

24 In relation to Dr Dewson's last observation, the evidence suggested that there had been material improvements in the home environment observed since the defendant's release from custody, and the level of support that she will likely receive from her family would appear to be more positive than Dr Dewson has allowed. Further, the defendant has commenced 'offence-specific intervention' and has advanced her treatment needs for her mental health and these developments are being encouraged and monitored by her case manager. It is possible that Dr Dewson, were she to update her assessment to include all contemporaneous factors, might reduce the assessment of the level of risk.

25 I accept Dr Dewson's opinion that the risk of the plaintiff personally engaging in an act of violence is low and that the most likely risk scenario should the defendant reoffend is being a supporting role for others wanting to engage in terrorism offences in a manner not dissimilar to her prior offending. To the extent that it formed part of her overall assessment that the risk of future offending was low-moderate, I was not persuaded by Dr Dewson's path of reasoning that the risk scenario that the defendant could reoffend in a more consequential or more serious way, or in a manner that directly affected Australian citizens within Australia, was anything other than remote.

26 Absent cross-examination it is difficult to accurately assess the expert evidence. Both Dr Dewson and Ms Lowe agreed that these risk assessments are sensitive to changing circumstances and require comparative weighting (by, I infer from the language of their reports, subjective or 'professional' judgment) of both dynamic factors and static factors, the latter of which may be historical, possibly diminishing in significance with the passage of time. An example of the latter might be viewing extremist material. Another difficulty that presents is the sliding scale of risk assessment that appears to be qualitative, involving a synthesis of factors, some incommensurate, by judgments of circumstances where on that overall assessment reasonable minds may differ. It is not clear what the precise distinction is between low risk and low-moderate risk. That lack of clarity is unhelpful in the application of the assessment of risk to predict possible future conduct and its consequences. This precludes any exactitude in the overall synthesis that the court must undertake to be satisfied that an ESO should be imposed on a defendant.

27 That said, it is unnecessary to make any further finding on this point, and Dr Dewson did not have the opportunity to develop her reasoning in this respect in oral evidence.

28 Ms Lowe, on the other hand, expressed her conclusions in these terms:

By her own admission, she was introduced to Islamic State ideology through a friend she has reconnected with online. And she found a community and network of other girls and people who made her feel as though she belonged, was cared for, and mattered. She increasingly spent time online, interacting and engaging with this community and the Islamic State ideology. She reported she felt at the time as though she was "living in a fantasy". Ms Sa'adat Khan's risk factors for involvement in violent extremism relate to her previous experiences of trauma, her perceptions of grievance relating to those experiences and her lack of connection or belonging within her family, the community or society. She has expressed a willingness to participate in interventions and supports to address these risk factors. She has expressed an awareness of her risk. She is able to identify the factors that led to her involvement in the offences, and she has expressed disappointment that it took her being arrested and incarcerated for her to realise that the "fantasy" she was engaged in was a "false fantasy".

29 Ms Lowe concluded that the risk remains that without support the defendant may revert to a violent extremist ideology. Although she did not specifically address the type of serious Part 5.3 offence that the defendant might commit, should she reoffend, I infer from her report that she would agree with Dr Dewson that the most likely form that reoffending might take would be conduct similar to her prior conduct, committed when she was 17. Of the nine risk indicators identified by Ms Lowe through the use of the professional judgment assessment tool known as 'Violent Extremism Risk Assessment - Version 2 Revised (Vera-2R)', five risk factors reflect static indicators that are historical or were present at the time of offending and four risk indicators that reflected dynamic risk. These indicators related to perceived grievances and/or injustice, expressed emotions in response to perceived injustice, hostility to national identity and susceptibility to influence, control, and indoctrination.

30 It has not been necessary in the circumstances to choose between Dr Dewson's assessment that the defendant's risk of committing a terrorism offence in the nature of the index offence is 'low-moderate' and Ms Lowe's assessment that the defendant's risk is assessed as 'low'. There was no active contest by the defendant on this application of the plaintiff's contention that the risk that the defendant might reoffend and commit a serious Part 5.3 offence is properly characterised as unacceptable. Therefore, where exactly and to what extent the experts diverged in their risk assessments was not explored.

31 Even though an offence in the nature of the index offence does not immediately achieve the same severe consequences as other types of terrorist offences, it would nevertheless be a matter of serious concern to offer assistance to those who wish to perpetrate acts of terrorism in Australia or abroad and the consequences of such assistance may be grave. In addition, it is relevant that although the level of risk of committing a serious offence is unclear or characterised as low/moderate, there are particular psychosocial factors identified that, absent appropriate intervention, could contribute to that risk remaining operative or increasing to a higher level. The proposed ESO is aimed predominantly at removing or mitigating those factors. The experts each identified such factors in this case and acknowledged the role the ESO might play in mitigating an unacceptable risk.

32 In these circumstances, I am satisfied that there is, presently, an unacceptable risk that the defendant might commit a serious Part 5.3 offence by conduct of a similar nature to the index offence.

33 What clearly emerges in the opinions of both experts is that the primary driver of their conclusions on risk assessment is the defendant's susceptibility to influence, control and indoctrination. There are a number of aspects of the defendant's background and circumstances, her mental health, her perspectives and attitudes, and her opportunities and that contribute to this risk that must be addressed. The possible consequences - whether that risk is and will remain unacceptable - largely influence the manner in which the imposition of an ESO on appropriate conditions may achieve the object of the Division. Dr Dewson's assessment - that the defendant's susceptibility to indoctrination and influence suggested that it will be important for her to be supported and supervised in the community - was critical to her opinions about the reasonable necessity and proportionality of the proposed conditions.

34 There was little difference between Dr Dewson and Ms Lowe on this aspect of their deliberations. Ms Lowe's summary of how the defendant's risk factors can be addressed through targeted interventions was not in contest:

(a) psychological support to manage mental health symptoms;

(b) counselling to address previous experiences identified in the evidence;

(c) family therapy to address family relational issues and functioning;

(d) religious support and access to religious leaders and mentors;

(e) access to education and vocational training to provide opportunities for employment;

(f) access to opportunities and support to develop skills and experience in developing relationships and engaging in social interactions.

35 I am satisfied that because the conditions to be attached to the ESO will permit the defendant to transition into the community with appropriate targeted support, mitigation of what I find would be an unacceptable risk can be achieved over the period of the order through community supervision, support and Community Integration Support Program (CISP) intervention. In other words, it is in this way that the object of the Division is to be achieved.

36 In a great many respects, the circumstances in 2015-2016, when the defendant's offending conduct occurred, are quite different to the present. Three of them may be noted. First, the circumstances of Islamic State and the practice of the ideology of violent jihad in Syria and elsewhere have evolved significantly since that time. Secondly, the defendant, who was 17 at the time of the offending conduct, is now 24. Thirdly, and most significantly, the defendant has served a sentence of imprisonment in difficult conditions for 2½ years, resulting in a significant rehabilitative shift in her personal perspectives.

37 The defendant affirmed an affidavit for this application. Although she was not cross-examined, I note that her present position is as follows:

(a) She does not believe she poses any risk to the community and that her belief is supported by the experts' reports that I have already referred to.

(b) She does not feel she is a threat to anybody. She added:

Inflicting actual physical harm on another human I have come to learn is not in my nature, it makes me feel sick, and I now understand that I cannot support anybody who will take a violent approach to conflict.

(c) She is committed to community reintegration particularly through participation in the CISP.

(d) She has a relationship with a treating psychologist and is receiving ongoing support and treatment for depression and PTSD.

(e) She intends to further her education and obtain gainful employment in the community with a focus on redefining her identity.

(f) In that context of redefining her identity, she now has the support of her family, her parents and her siblings which is something that she did not enjoy prior to her incarceration.

38 The defendant particularly stressed that she has come to a deep understanding and acceptance that the misrepresented ideologies that she supported and which led to her offending are wrong. She describes them as heavily based on extremist interpretations of Islamic ideology which she now knows and understands to be misleading and incorrect. The defendant states that she is no longer prepared and has not the slightest interest in supporting any person who upholds these misinterpreted ideologies. She hopes that her experience can be a tool to educate others who seek validation and acceptance online from people with extremist ideologies. She expresses a commitment to continuing with her religious re-education, stating that she is a lot older and a lot wiser from the experiences that she had been through and from the people that she met in custody. She has now been exposed to people from all walks of life, from whom she has learnt much about her identity, this country and the communities that populate it.

39 In her affidavit the defendant expresses a mature explanation of the impact upon her of her time in prison, and notes that she has learnt to appreciate the positive aspects of her circumstances, particularly forming relationships with other women with different faiths and beliefs whose views she has learnt to value and respect.

40 I am satisfied that the prison term has had a substantial impact on the defendant in terms of specific deterrence and rehabilitation, although in respect of the latter, it is the defendant's attitude, rather than any specific programs or responses by the Office of Corrections, that has developed and improved. It is regrettable that serving her sentence as a remand prisoner denied the defendant access to rehabilitative programs and necessitates many of the conditions to be imposed on her by the ESO in order to address that key risk of her susceptibility to inappropriate influence.

41 I am satisfied to the appropriate standard that each of the conditions to be imposed on the defendant by the ESO is reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk already discussed. The essence of this assessment focuses on proportionality. A condition will not be reasonably necessary if the relevant obligation, prohibition or restriction imposes a greater degree of restraint than the reasonable protection of the public requires.[5] The synthesis of considerations I have undertaken also requires balancing what is reasonably necessary against what is reasonably appropriate and adapted in the context of protecting the public from the unacceptable risk of a terrorist act, as analysed above, while assessing the impact of the conditions on the defendant's circumstances. Concerning this 'balancing exercise',[6] in the context of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW), Bell, Keane, Nettle and Edelman JJ identified an important consideration to be the extent to which an order will intrude upon the defendant's liberty, including the scope of the order and the length of its term.

42 On the present application, the plaintiff reduced the term sought from 3 years to 18 months, which is significant for reasons that I will come to.

43 As to the scope of the order, the plaintiff submitted, and I agree, that the observations of Wright J in State of New South Wales v BP (No 2),[7] provide useful guidance concerning what will be reasonably necessary, and appropriate and adapted, to address risk. Imposing an interim supervision order under the provisions of the Terrorism High Risk Offenders Act 2017 (NSW) (THRO Act), Wright J made observations that, with respect, I consider provide useful guidance on the task before this court. His Honour observed that in order for there to be an appropriate connection between the condition and the 'risk of future offending of the type which is the basis for the order', the court should consider:

(a) whether the condition addresses a means of controlling possible risk factors related to the type of offending in question;

(b) whether the condition is designed to avoid situations where the offender's rehabilitation or reintegration into the community might be compromised; or

(c) in some cases where the condition does not directly relate to the offender's risk, whether it promotes the efficacy of other conditions that do.

44 I accept the plaintiff's submission, which the defendant did not contest, that each of the proposed ESO conditions are directed to one or more of these purposes. As I noted in the ISO reasons, the conditions, which remain substantially unchanged, may broadly be categorised as conditions directed to therapeutic intervention and conditions directed to limiting the opportunities for the defendant to be influenced by extremists, and her ability to access or produce extremist materials. The conditions that are directed to achieving therapeutic intervention are described by each of Dr Dewson and Ms Lowe as necessary to control the defendant's primary risk factors (conditions 1-3). Without setting out in respect of each condition the path of reasoning that leads me to this conclusion, I am satisfied that each condition is reasonably necessary and reasonably appropriate and adapted for the purposes of protecting the community from the unacceptable risk that the defendant might reoffend in the manner described above.

45 A second set of conditions (conditions 9 and 10) are directed to limiting the defendant's opportunities and her ability to access or produce extremist material and to be influenced by extremists or to engage in communications with persons who might exploit her susceptibility to influence, control and indoctrination. Condition 10 is designed to limit the opportunities for others with extremist views to influence or radicalise the defendant.

46 The remaining conditions that enable the defendant's communications and online activities to be monitored (conditions 1, 4-8, and 11) satisfy the test because they complement and are necessary for the monitoring and enforcement of the conditions that are designed to prevent the defendant from being exposed to, producing, or disseminating extremist material which could be used to commit a serious Part 5.3 offence or could have a radicalising effect on her. The defendant's offending involved the use of messaging applications and social media, including encrypted messaging services, and the use of aliases. It is appropriate to address appropriately, and monitor or review, the defendant's future use of internet connected devices. That said, there are important reasons why the defendant ought to have access to a mobile phone, an internet service, an internet capable device and certain applications not simply for the purpose of communicating with her case manager but more broadly because in a practical sense such access is necessary for community reintegration and her development of a more mature and engaged identity.

47 Both of the experts recognise that in the context of the defendant's increasing maturity the targeted interventions achieved by the conditions of the order are designed to enable the defendant to transition to a state where it can confidently be accepted that she no longer presents an unacceptable risk of further offending. In this context it may be accepted that substantial improvements in the management of her mental health, counselling to address her past experiences, family therapy, religious support and education, vocational training and further general education and the development of skills and experience in relationships and social interactions are likely to achieve this goal. In this context, the continuation of unduly restrictive conditions into the future may be counterproductive, which is a risk that was identified by each of the experts in setting conditions of the ESO.

48 Many aspects of this application involve assessment of what may be appropriate in the future, always a difficult task, and one that is best achieved by a process of evaluation of progress and review of the continuing suitability of the conditions. There are two mechanisms built into the order, and features of the statutory scheme under which it operates, that can address this concern. The first is that a number of conditions are identified as exemption conditions that will enable the AFP superintendent appointed by the order to moderate the operation of certain conditions as and when it is considered appropriate that that be done. Secondly, and perhaps more importantly, although the plaintiff applied for an ESO to operate for a period of 3 years, he accepted that a period of 18 months is appropriate and varied the application accordingly. Perhaps recognising that there are benefits for her in the ESO, the defendant has not submitted that an ESO for a term of 18 months rendered the order itself, or any of the individual conditions, to be not reasonably necessary or not reasonably appropriate and adapted.

49 The third matter is that s 105A.10 provides that the plaintiff must seek a review by the court of the ESO that is in force in relation to the defendant on an annual basis. That requires that the ESO to which the defendant is now subject be reviewed within 12 months from its commencement. Further, under s 105A.11, certain persons, including the defendant or her legal representative may apply to the court for review of the order and the court may review the order if satisfied that there are new facts or circumstances which would justify that review or that it would be in the interests of justice, having regard to the purposes of the order and the manner and effect of its implementation, to review it.

50 I anticipate that the process of reintegration of Ms Sa'adat Khan into the Australian community with a mature identity and mitigated risk factors through the success of interventions that are now in place, may provide, in due course, the most effective way of achieving the object of the Division. Ongoing assessment of whether conditions remain reasonably necessary and proportionate will necessarily contribute to that goal.

51 For all of these reasons I was satisfied, notwithstanding that the application proceeded on the basis of a tender of evidence without a full contest, that it was appropriate to make the ESO to operate for a period of 18 months on the conditions sought.

[1] Schedule to the Criminal Code Act 1995 (Cth) (Code).

[2] Attorney-General v Hadashah Sa'adat Khan [2022] VSC 507 (ISO reasons).

[3] Minister for Home Affairs v Benbrika (No 2) [2020] VSC 888; Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359.

[4] Benbrika v Minister for Home Affairs [2021] VSCA 303, [79].

[5] Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 330-1 [19], 332 [22] (Gleeson CJ).

[6] Ibid 352 [99] (Gummow and Crennan JJ).

[7] [2019] NSWSC 806.