//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2022] FCA 42
Federal Court of Australia
2022-01-31
Mr P, Snaden J
Original judgment source is linked above.
ANNEXURE
SNADEN J: 1 On 6 July 2021, the court made an interim control order in respect of the respondent, Mr Brookman: Booth v Brookman [2021] FCA 767 (Snaden J). On 24 January 2022, that order was varied: Booth v Brookman (No 2) [2022] FCA 30 (Snaden J). 2 The interim control order as varied (hereafter, "the ICO") was scheduled for a confirmation hearing to take place on Monday, 31 January 2022 pursuant to s 104.14 of the Criminal Code (being the schedule known as such to the Criminal Code Act 1995 (Cth) - hereafter, "the Code"). On Friday, 25 January 2022, the applicant, Commander Booth (a sworn officer of the Australian Federal Police), signed a notice of election to confirm the ICO, which was then (along with other material) duly served upon Mr Brookman in accordance with the requirements of s 104.12A of the Code. 3 The confirmation hearing proceeded as scheduled on Monday, 31 January 2022. The applicant led evidence in the form of a statement of agreed facts, and read and relied upon the following affidavits: (1) paragraphs [1]-[2], [8], [40]-[77.2], and [78]-[194] of the affidavit of Commander Booth sworn on 28 June 2021; (2) the affidavit of Detective Superintendent Alexander Gordon Reginald Nicolson affirmed on 28 June 2021; (3) the affidavit of Detective Sergeant Amanda Glover affirmed on 14 July 2021; and (4) the affidavit of Detective Senior Constable Alice Port affirmed on 28 January 2022. 4 All of the evidence was received without objection. It is unnecessary that I should attempt anything more than a high-level summary of it. It suffices to note that the evidence disclosed details of the respondent's criminal history, his support of causes aligned with Islamic fundamentalism (both generally and, specifically, with respect to opposition forces in Syria), his glorification of violence carried out by those forces (in particular, against "kuffs" and "kuffar" - or non-adherents of the Islamic faith), and his apparent endorsement of violent jihad, "mujaahid", "mujahideen" and martyrdom. The evidence also suffices to establish the service and explanation requirements imposed by ss 104.12 and 104.12A of the Code. 5 In addition to the body of evidential material, both parties filed helpful written submissions. By way of summary, the applicant submitted that, on the strength of the evidence before it, the court should be satisfied of all of the criteria that condition the confirmation of interim control orders under s 104.14 of the Code (reference to which is made in more detail below). The respondent accepted as much and did not oppose the confirmation of the ICO. 6 For present purposes, the court's power to confirm the ICO is conditioned by the same two matters that governed its making in the first place: the Code, s 104.14(7)(c). Specifically, the court must determine whether: (1) one or more of the circumstances listed in s 104.4(1)(c) exists - which, in this case, is to say whether the respondent has been convicted in Australia of an offence relating to terrorism (see the Code, s 104.4.(1)(c)(iv)), or has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country (see the Code, s 104.4(1)(c)(vii)); and whether (2) the controls imposed by the ICO are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act, or preventing the provision of support for or the facilitation of a terrorist act, or the engagement in a hostile activity in a foreign country (see the Code, s 104.4(1)(d)). 7 If satisfied that both requirements are met, the court may confirm the ICO without variation: the Code, s 104.14(7)(c). In determining whether each control satisfies the second of those two requirements, the court must take into account, as a paramount consideration, the objects of div 104 of the Code and, as an additional consideration, the impact of the control upon the respondent's personal circumstances: the Code, s 104.4(2). 8 For the purposes of confirmation under s 104.14 of the Code, the court must consider the original request for an interim control order and any evidence and submissions made at the confirmation hearing: the Code, s 104.14(3). An order to confirm an interim control order must, nonetheless, be made only on the strength of the evidence adduced and the submissions advanced for that purpose: the Code, s 104.14(3A). 9 Proceedings under div 104 of the Code are civil, rather than criminal, in nature. A control order serves not to punish a respondent but, rather, as a measure of community protection: the Code, s 104.1; see also Thomas v Mowbray (2007) 233 CLR 307, 330 [18] (Gleeson CJ), 347-348 [79] (Gummow and Crennan JJ). The court's satisfaction of the matters that condition the granting of orders under div 104 is to be assessed on the balance of probabilities. It is not necessary that the court positively form the view - nor that there be evidence to suggest - that the respondent poses any kind of positive threat to the community: see, eg, Booth v Namoa [2019] FCA 2213, [28]-[31] (Rares J). 10 The confirmation of an existing interim control order must take place by means of further order: the Code, s 104.16(1). 11 Having considered the evidence placed before me and the submissions that the parties advanced, I am satisfied that it is appropriate to confirm the ICO without variation. In particular, I am satisfied (and it is not, in any event, in contest) 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): see Booth v Brookman [2021] FCA 767 [2]-[3] (Snaden J). 12 Further - and taking account of the matters to which I must have regard under s 104.4(2) of the Code - I remain satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions whose imposition upon the respondent is contemplated by the confirmation of the ICO is (and all of them, in combination, are) reasonably necessary, and reasonably appropriate and adapted, for each of the purposes identified in s 104.4(1)(d) of the Code. That was the conclusion to which I was drawn when the ICO was made and, subject to the observations below, it remains so now. 13 Appropriately, the applicant highlighted two respects in which the present circumstances differ from those that obtained at the time that the ICO was made. First, she noted that a substantial volume of evidence - in particular, evidence of the respondent's social media activities - which was relied upon for the purposes of the ICO was not now relied upon. That, she explained, reflected the fact that the admissibility of that material might now need to be the subject of argument, and that, in light of the fact that the respondent does not resist confirmation of the ICO and that the evidence in question is largely and in any event reflected in the statement of agreed facts, it was considered unnecessary to engage the court in that debate. Second, the applicant noted that the respondent is presently remanded in custody pending the hearing of criminal charges that have recently been brought against him. 14 Neither of those realities affects the state of satisfaction recorded above (at [12]). The absence of the social media evidence is neither here nor there. Although it might well have been that the court could more easily have been satisfied of certain matters - in particular, of the respondent's ideological commitments - had that material been adduced, the material that is before the court suffices to that end in any event. Likewise, the fact that the respondent is presently in custody is of little moment. The controls that are to be confirmed will not apply for so long as that custody remains in effect. In the event that it ceases, they will become as necessary and appropriate as they were when they were first imposed. Further, as senior counsel for the respondent put it, the confirmation of the ICO might well assist the respondent in any application that he makes for bail pending the determination of the charges with which he is faced. 15 In light of the above observations, I am satisfied that it is appropriate to confirm the ICO without variation. 16 Additionally and for reasons that hardly require elaboration, it is appropriate to replicate the orders that were made at the same time as the ICO pursuant to pt. 5AA of the Federal Court of Australia Act 1976 (Cth). Those orders (to which the applicant consents, as she did when the ICO was made) will serve to prohibit the disclosure of information that is contained within the ICO (and that is to be replicated in the confirmed control order) that is personal to the respondent. They will be replicated in the court's orders. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.
Booth
Brookman