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[2021] FCA 767
Federal Court of Australia
2021-07-06
Mr P, Snaden J
Original judgment source is linked above.
THE COURT ORDERS THAT: Interim control order
SCHEDULE
a. the Respondent's prior social media activity espousing extremist ideologies.5 b. the nature of the Respondent's communications with persons outside of the prison environment whilst in custody (either directly or through third parties).6 c. The Respondent's prominence within the prison environment, including leading prayer groups and dispensing advice in the manner of an authority figure.7 d. The Respondent is likely to be respected and admired by people in the community who support Islamic extremism by virtue of his having been in Islamic-State controlled areas of Syria and having directly supported groups engaged in foreign hostilities. Association with persons who hold similar extremist views 11. The Respondent has a number of associates who hold similar extremist views, including other persons in Australia posing national security risks.8 12. The Respondent has a network of contacts in Australia and offshore, including in Turkey, who have previously assisted his entry into and exit from Islamic State-controlled areas.9 13. The Respondent's network of associates who hold similar extremist views increases his means and opportunity to: a. commit, support and facilitate terrorist acts in Australia or overseas; and b. commit, support and facilitate engagement in a hostile activity in a foreign country. Appropriateness of controls 14. The nature of the risk posed by the Respondent is complex and multifaceted. Having regard to the various matters outlined above, each of the controls in the draft interim control order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of: a. protecting the public from a terrorist act; b. preventing the provision of support for or the facilitation of a terrorist act; or c. preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. 15. In addition, the controls will ensure the Respondent: a. is provided with the opportunity to engage positively with the community (through employment, religious observation, counselling and education); b. is capable of being monitored by police during his re-engagement with the community; c. is prohibited from engaging in behaviours, and being exposed to influences, which may lead him to provide support for or facilitate a terrorist act in Australia or abroad or the engagement in a hostile activity in a foreign country. 16. In view of the matters outlined above, there is a significant risk that in the absence of these controls, the Respondent may: a. commit, support and facilitate terrorist acts in Australia or overseas; or b. commit, support and facilitate engagement in a hostile activity in a foreign country. 17. The interim control orders should be made notwithstanding the matters set out in the statement of facts relating to why the order should not be made, for the following reasons: a. The statements made by the Respondent regarding his reasons for travelling to Syria10 should not be accepted as truthful. Instead they should be seen as self-serving statements made around the time he was seeking to return to Australia and designed to positively influence the public perception of his role in Syria. b. The cessation of the Respondent's contact with Ms Shoma11 should be considered a self-serving act for the purposes of his impending sentencing hearing rather than demonstrating any genuine self-reflection on his part on his contact with or disassociation from Ms Shoma. c. Although the Respondent has fair prospects of rehabilitation,12 the Respondent's possible engagement in rehabilitation programs has not been tested in a community setting. The Respondent will not be engaging in those programs in a structured correctional centre environment in light of his early release. d. Even though the Respondent is likely to have limited resources to conduct a terrorist act and does not appear to have any financial support or benefactors,13 high-impact attacks can be undertaken with low resources (such as using a vehicle or a knife). There remains a real risk that the Respondent could conduct an onshore attack with minimal planning or resources. e. The Respondent has potential to reconnect with past associates who could reinforce his extremist ideology.14 f. The Respondent's good behaviour in custody15 does not demonstrate a moderation of his extremist views.
SNADEN J: 1 The applicant is a sworn officer of the Australian Federal Police. She holds the rank of Commander. By an application filed 29 June 2021, she moves the court for relief against the respondent in the form of an interim control order under division 104 of the Criminal Code (being the schedule known as such to the Criminal Code Act 1995 (Cth) - hereafter, "the Code"). 2 The proposed order relates to the respondent's criminal history. On 24 July 2015, the respondent was arrested and later charged with (amongst other things) having performed services in support or promotion of the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), contrary to s 7(1)(e) of that Act. He was remanded into custody upon returning to Australia from Syria, where he partook of various activities aimed toward the overthrow of the Syrian government. 3 On 14 April 2021, he pleaded guilty to the charge described above and, on 23 June 2021, was convicted and sentenced to six years and eight months' imprisonment. His sentence was to expire on 24 March 2022; however, the Secretary of Corrections Victoria reduced it under s 58E of the Corrections Act 1986 (Vic). As a result, the respondent was released from prison on 23 June 2021, a matter of hours after he was sentenced. 4 The applicant now seeks to impose upon the respondent various constraints upon his personal freedoms, principally in light of his known history of devotion to and/or association with elements of Islamic extremism. The application is supported by an affidavit that the applicant swore on 28 June 2021, parts of which were the subject of orders made on 5 July 2021 under Part VAA of the Federal Court of Australia Act 1976 (Cth). It is also supported by an affidavit affirmed on the same day (28 June 2021) by another sworn officer, Detective Superintendent Alexander Nicolson, and a further affidavit sworn by the applicant on 5 July 2021. 5 As division 104 of the Code requires, the affidavit material presented in support of the application contains a written record of the controls for which the applicant moves, a summary of the grounds upon which they are sought to be imposed and a large volume of other information relevant to the suspicions or beliefs upon which the applicant's request proceeds. It is not necessary to summarise that information in any detail. It suffices to note that it establishes a proper basis for the concerns that the applicant expresses about the respondent's association with Islamic fundamentalism and the related risks that he poses or may pose to public safety; in particular, risks associated with the commission of a terrorist act, with the provision of support for or the facilitation of the commission of a terrorist act, and with the provision of support for or the facilitation of the commission of a hostile activity or hostile activities in a foreign country. It is in respect of those risks that the application proceeds. The material also establishes that the controls that are proposed to address those risks are proportionate and adapted to ensure, so far as is reasonably possible, that they not be realised. 6 The respondent does not resist the making of a control order in the form that the applicant proposes. 7 Having reviewed the material provided and having read and heard the submissions of counsel, I am satisfied, for present purposes, that each of the requirements of s 104.4 of the Code is satisfied. In particular, I am satisfied on the balance of probabilities that the respondent has been convicted in Australia of an offence relating to terrorism; and/or has provided support for, or otherwise facilitated, the engagement in a hostile activity in a foreign country (as defined for the purposes of the Code). Further - and taking account of the matters to which I must have regard under s 104.4(2) of the Code - I am satisfied on the balance of probabilities that the obligations, prohibitions and restrictions whose imposition upon the respondent is contemplated by the order that the applicant proposes is, each individually, and are, in combination, reasonably necessary, and reasonably appropriate and adapted, for each of the purposes identified in s 104.4(1)(d) of the Code. 8 In light of those observations, I am satisfied that it is appropriate to make orders in the form that the applicant proposes. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.
Associate: Dated: 7 July 2021
Booth
Brookman