WHITE J:
1 I am dealing with an application for the making of an Interim Control Order (ICO) in relation to Paul Dacre, pursuant to s 104.4 of the Criminal Code contained in the Schedule to the Criminal Code Act 1995 (Cth).
2 On 22 February 2019, Mr Dacre was sentenced, on his plea of guilty, in the Supreme Court of Victoria for the offence of preparing for incursion into a foreign country for the purpose of engaging in hostile activities, in contravention of ss 11.2A and 119.4(1) of the Criminal Code. He was sentenced to imprisonment for four years (after a reduction for his plea of guilty) and a non-parole period of three years was fixed. As Mr Dacre had been in custody since his arrest on 10 May 2016, the term of his imprisonment expired last week and, on 8 May 2020, he was released from custody.
3 As Anastassiou J noted in Sandra Booth v Murat Kaya [2020] FCA 25 at [4], the sentencing remarks of Croucher J in the Supreme Court of Victoria provide a detailed narrative of the events and conduct of Mr Dacre and his co-offenders: R v Cerantonio [2019] VSC 284. Anastassiou J summarised the prosecution case as follows:
[4] In summary, the Crown's case was that between 22 October 2015 and 10 May 2016, the respondent and his co-offenders joined in an agreement to engage in conduct in Australia, and did engage in such conduct, preparatory to one or more of them entering the Philippines with intent to encourage or join with others there in conduct aimed at overthrowing the government of the Southern Philippines by force or violence. The Crown alleged that the motivation for the agreement between the respondent and his co-offenders was to enable the Southern Philippines ultimately to be governed by Islamic law, otherwise known as "Sharia law". The hostile activity that the respondent and his co-offenders intended was that one of them, Mr Cerantonio, would enter the Philippines to encourage persons of the Islamic faith to carry out actions directed at achieving the overthrow by force or violence of the government of the Southern Philippines.
[5] By 22 October 2015, neither the respondent or any of his co-offenders were able to gain entry to a foreign country or to assist Mr Cerantonio to do so. At different times during 2015 and 2016, a number of the co-offenders, including the respondent, had sought to leave Australia but were refused departure by the authorities. Eventually, all six of the co-offenders had their Australian passports cancelled. In that context, they agreed to acquire a boat and other necessary equipment to leave Australia in a covert manner to facilitate ultimate entry to the Philippines. An element of their agreement was that only Mr Cerantonio was to be involved in actually encouraging others to attempt to overthrow the government of the Southern Philippines by force or violence. There was no formed plan by Mr Cerantonio as to how the encouragement of others in the Philippines was to occur. The means by which he was to encourage others, and who those others might be, were unknown.
[6] In the course of his sentencing remarks, Croucher J observed at [91]:
First, as I have just intimated, the whole venture was poorly planned and, I fear, foredoomed to failure. Given the ill-suited vessel the group had purchased and their lack of serious boating experience, it is hard to imagine that they would have made it very far past the breakers off the far north of Queensland.
4 The request for the ICO in respect of Mr Dacre was made on 6 May 2020 and, by an order of the Court on 8 May 2020, was listed for hearing today.
5 The request is supported by a substantial affidavit by the applicant, Ms Booth. She holds the rank of Commander in the Australian Federal Police (AFP). Ms Booth's substantive position is that of Manager, Counter Terrorism Operations South.
6 In accordance with the order of the Court, on 8 May 2020 counsel for Ms Booth filed written submissions in support of the application.
7 On 12 May 2020, the solicitor for Mr Dacre filed a one page written submission in response in which he said that Mr Dacre, having read the applicant's submissions of 8 May, did not wish to make any submissions and would not oppose the making of an ICO. The solicitor indicated, however, that Mr Dacre may wish to make a submission in relation to the conditions in the ICO sought by the applicant. Mr Brand, who appeared today for Mr Dacre, did make some short submissions seeking in effect, non-publication orders with respect to particular aspects of the controls in the ICO.
8 Although Mr Dacre's attitude makes the task of this Court on the present application more straightforward, it does not relieve the Court of its statutory responsibility to be satisfied on the balance of probabilities of the matters necessary for the making of an ICO. Those matters are specified in s 104.4(1) of the Criminal Code which provides:
(1) The issuing court may make an order under this section in relation to the person, but only if:
(a) the senior AFP member has requested it in accordance with section 104.3; and
(b) the court has received and considered such further information (if any) as the court requires; and
(c) the court is satisfied on the balance of probabilities:
(i) that making the order would substantially assist in preventing a terrorist act; or
(ii) that the person has provided training to, received training from or participated in training with a listed terrorist organisation; or
(iii) that the person has engaged in a hostile activity in a foreign country; or
(iv) that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or
(v) that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or
(vi) that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or
(vii) that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; and
(d) the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
(i) protecting the public from a terrorist act; or
(ii) preventing the provision of support for or the facilitation of a terrorist act; or
(iii) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
9 Section 104.4(1) requires the Court be satisfied of four separate matters before making an ICO:
(a) that the request is made by a senior AFP member and has been made in accordance with s 104.3 (s 104.4(1)(a));
(b) that the Court has received and considered such further information as the Court has required (s 104.4(1)(b));
(c) that at least one of the matters specified in subss (1)(c) is established; and
(d) that each of the obligations, prohibitions and restrictions to be imposed on the person is reasonably necessary, and reasonably appropriate and adapted, for the purpose of achieving at least one of the effects specified in subs (1)(d).
10 Section 104.5(3) lists 12 different forms of obligations, prohibitions and restrictions that the Court may impose on a person by an ICO. The maximum period for which an ICO may be in force is 12 months (s 104.5(1)(f)).
11 Section 104.4(2) elaborates subs (1)(d) by requiring the Court to take into account as a paramount consideration in all cases the objectives of Div 104 stated in s 104.1 and (as an additional consideration) the impact of the obligation, prohibition or restriction on the person's circumstances (including the person's financial and personal circumstances).
12 Looked at generally, a court asked to make an ICO is required, once satisfied of the first three elements in s 104.4(1), to make an evaluation of the obligations, prohibitions and restrictions which should be imposed having regard to what is reasonable necessary, 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 preventing the provision of, support for, or the facilitation of the engagement in a hostile activity in a foreign country.
13 In Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, the High Court considered the provision now located in s 104.4(1)(d)(i). Some of the Courts' reasons are, however, equally applicable to subparas (ii) and (iii) in subs (1)(d). At [19], Gleeson CJ said:
The requirement that a court consider whether each of the obligations imposed by a control order is both reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public was the subject of debate. A requirement of that kind would sometimes be described as a requirement of proportionality. Judgments about proportionality often require courts to evaluate considerations that are at least as imprecise as those involved in formulating a control order.
14 In their joint judgment, Gummow and Crennan JJ said at [99]:
Section 104.4(1) requires in para (d) that each of these be measured against what is "reasonably necessary" and also against what is "reasonably appropriate and adapted" for attainment of the purpose of public protection from a terrorist act. This is weighed with the impact upon the circumstances of the person in question as a "balancing exercise" (s 104.4(2)).
15 Earlier, at [92], Gummow and Crennan JJ said:
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 [September 11 and other terrorist activities], and the facts and circumstances disclosed in the evidence on the particular application for an order.
16 The matters specified in s 104.4(1)(a) are of a formal nature. I am satisfied that Ms Booth has the standing to make the application, that she has made the request in the appropriate form, and that she has provided the Court with the information and documents required by s 104.3.
17 In relation to s 104.4(1)(b), the Court has not sought further information from Ms Booth.
18 In seeking the ICO in relation to Mr Dacre, Ms Booth relies upon s 104.4(1)(c)(iv) or, alternatively, s 104.4(1)(c)(vii). The question of whether the offence of which Mr Dacre was convicted is an offence relating to terrorism for the purposes of subs (1)(c)(iv) was considered by Anastassiou J in Booth v Murat Kaya and confirmed implicitly in Booth v Thorne [2020] FCA 445. Mr Murat Kaya and Mr Thorne were each one of Mr Dacre's co-accused. I respectfully agree with the reasons of Anastassiou J and am therefore satisfied that the third matter about which the Court must be satisfied is established. That being so, it is not necessary to consider Ms Booth's reliance in the alternative on s 104(4)(1)(c)(vii).
19 As already noted, in determining for the purposes of s 104.4(1)(d), whether the obligations, prohibitions, and restrictions to be imposed on the person by the ICO are reasonably necessary and reasonably appropriate and adapted for the specified purposes, the Court must take into account as a paramount consideration the objects of Div 104 stated in s 104.1.
20 The ICO proposed by Ms Booth in respect of Mr Dacre contains 20 different controls. Broadly speaking, the controls are of the following kind:
(a) a curfew condition;
(b) a reporting condition;
(c) a prohibition on being at airports or ports with an international point of departure;
(d) requirements that Mr Dacre not leave the State of Victoria or Australia;
(e) a requirement that he not be at the residence of any of his co-offenders and certain other individuals;
(f) prohibitions on engaging in a number of specified activities, which broadly speaking may have an association with terrorist activities;
(g) a prohibition on using a vehicle which exceeds a gross vehicle mass of 4.5 tonnes;
(h) a prohibition on undertaking paid work without first notifying the AFP Superintendent in writing;
(i) a prohibition on possessing or using certain items;
(j) a prohibition on communicating or voluntarily associating with identified persons, and in particular, with his co-offenders;
(k) a prohibition on using any mobile phone and SIM card other than one provided by the AFP;
(l) a prohibition on using a fixed or landline telephone service other than one approved by an AFP Superintendent;
(m) prohibitions on accessing or using a public telephone or satellite telephone service;
(n) a prohibition on accessing or using a large number of websites, applications and computer programs;
(o) a prohibition on accessing or using an internet service other than a service approved by an AFP Superintendent;
(p) a prohibition on using an email account other than an account approved in writing by an AFP Superintendent;
(q) a prohibition on using any computer other than a single computer provided by the AFP; and
(r) the obligation to consider, in good faith, participation in counselling or education relating to his spiritual, emotional and physical wellbeing.
21 This range of obligations, prohibitions and restrictions is extensive but it follows, in general form, the terms of ICOs made under s 104.4 in earlier cases and, in particular, in relation to some of Mr Dacre's co-offenders.
22 Ms Booth has deposed that the controls, taken together, are intended to ensure that Mr Dacre:
(a) is provided with the opportunity to engage positively with the community upon his release from custody;
(b) is capable of being monitored by police during his reengagement with the community; and
(c) is prohibited from engaging in those behaviours and being exposed to those influences which may lead him to commit a terrorist act, provide support for or facilitate a terrorist act or provide support for or facilitate hostile activities in a foreign country.
23 Ms Booth's affidavit contains a detailed explanation of why she considers each control is reasonably necessary and reasonably appropriate and adapted for the specified purposes.
24 As I indicated earlier, Mr Dacre has not challenged any aspects of Ms Booth's explanation nor the appropriateness of any individual control. That means that it is not necessary for the Court to discuss in detail in these reasons the justifications advanced by Ms Booth. It is sufficient to indicate that, for the purposes of this interlocutory hearing, I accept that the controls proposed satisfy the requirements of s 104.4(1)(d). The attitude of the respondent makes it easier for the Court to attain that degree of satisfaction.
25 There will accordingly be an order in the terms proposed by Ms Booth. I make the following orders:
(1) Pursuant to s 104.4 of the Criminal Code, which is the Schedule to the Criminal Code Act 1995 (Cth), upon the Respondent being personally served, he is bound by the terms of the Interim Control Order (ICO) set out in the schedule to the orders.
(2) The Applicant take all reasonable steps to ensure that any request for approval which the Respondent makes to an AFP Superintendent as defined in paragraph [23.1(a)] of the ICO, in accordance with the ICO, including any request for exemption under paragraph [22] is determined as soon as reasonably practicable.
(3) Acting pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) and on the ground in s 37AG(1)(d), there is to be no publication of the address mentioned in paragraph [1.1] of the terms of the ICO, the name of the police station and the address mentioned in paragraph [2.2] of the ICO, the names of any of the individuals named in paragraph [16.3(a)] in the ICO and any of the dates of birth of the persons listed in paragraph [11.1(c)] of the ICO.
(4) The form of the order which is to be available to the public on the Court's Portal is to have the details to which Order 3 refers redacted.
(5) Any further affidavits to be relied upon by the Applicant at the hearing fixed by Order 8 in the schedule are to be filed and served by 19 May 2020.
(6) Any further affidavits to be relied upon by the Respondent at that hearing are to be filed and served by 26 May 2020.
(7) The Applicant is by 19 May 2020 to file and serve an outline of submissions to be made at that hearing, with that outline not to exceed 10 pages.
(8) The Respondent is by 26 May 2020 to file and serve an outline of submissions to be made at that hearing, with that outline not to exceed 10 pages.
(9) There be liberty to the parties to apply.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.