YATES J:
1 The applicant, who is the Commander, Counter Terrorism Enduring Risk Investigations of the Australian Federal Police (AFP), requests the Court to make an interim control order pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) (the Code) in respect of the respondent.
2 The respondent, Radwan Dakkak, pleaded guilty to two offences under s 102.8(1) of the Code (associating with terrorist organisations). The offence created by s 102.8(1) is within Pt 5.3 of the Code, entitled "Terrorism". The charges against the respondent were particularised as follows:
Charge 1 (association with Isaac El Matari)
On two or more occasions, between 1 January 2019 and 2 July 2019, did intentionally associate with another person, namely Isaac El Matari, knowing that he was a member of, and a person who promoted and/or directed the activities of an, organisation, namely Islamic State, and knowing that the organisation was a terrorist organisation, in circumstances where the association provided support to the organisation and intending that the support assist the organisation to expand or continue to exist.
Charge 2 (association with Sheikh Hussein and Ahlut-Tawhid Publications)
On two or more occasions, between about 26 July 2017 and 2 July 2019, did intentionally associate with other persons, namely Sheikh Hassan Hussein and a person or persons at Ahlut-Tawhid Publications, knowing that they were members of, and were persons who promoted and/or directed the activities of, an organisation, namely Islamic State, and knowing that the organisation was a terrorist organisation, in circumstances where the association provided support to the organisation and intending that the support assist the organisation to expand or continue to exist.
3 As a consequence of his pleas of guilty, the respondent admitted, in respect of each charge, that: (a) he intentionally associated with another person on two or more occasions; (b) he knew that the other person was a member of or a person who promotes or directs the activities of an organisation; (c) the organisation was a terrorist organisation, and the respondent knew this; and (d) the association between the respondent and the other person provided support to the terrorist organisation.
4 The fault element for the offence is "intention" and, by pleading guilty, the respondent admitted that he intended to support each organisation, named in the charges, to expand or continue to exist by his association with them.
5 On 18 December 2020, the respondent was convicted of the offences and sentenced in the Supreme Court of New South Wales to imprisonment. The last of the sentences imposed will expire on 1 January 2021. The present application has been brought on urgently because the applicant seeks to have the interim control order in place upon the respondent's release from prison.
6 The application is supported by the applicant's affidavit made on 21 December 2020. The affidavit is lengthy. It annexes and exhibits a large number of documents to which the applicant makes reference. The annexures comprise: (a) a draft of the interim control order the applicant seeks (subsequently amended following discussions between the parties); (b) the AFP Minister's consent to the applicant's request for the interim control order; (c) a statement of facts relating to why the interim control order should be made; (d) a statement of facts of which the applicant is aware relating to why the interim control order should not be made; (e) information about the respondent's age; and (f) a summary of the grounds on which the interim control order should be made.
7 The affidavit in support gives an explanation as to why each of the proposed obligations, prohibitions or restrictions (the controls) in the proposed interim control order should be made. It includes the applicant's statement that she is not aware of any additional reasons why the controls should not be imposed.
8 I am satisfied that the affidavit in support fulfils the requirements of s 104.3 of the Code and that, as a consequence, the request, which is made by a senior AFP member (within the meaning of s 100.1(1) of the Code), is one that satisfies the requirement of s 104.4(1)(a) of the Code. The Court has not required further information to be provided: see s 104.4(1)(b) of the Code.
9 The remaining questions are whether, on the information before me, I am satisfied, on the balance of probabilities, that one or more of the matters identified in s 104.4(1)(c) of the Code have been established and whether, according to the same standard of proof, each control, as sought to be imposed on the respondent, is reasonably necessary, and reasonably appropriate and adapted, for one or more of the purposes identified in s 104.4(1)(d) of the Code. The latter provision clearly invokes considerations of proportionality: Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at [19] (Gleeson CJ); see also at [99] (Gummow and Crennan JJ).
10 As to s 104.4(1)(c), the applicant submits that the respondent has been convicted in Australia of an offence relating to terrorism or a terrorist organisation, within the meaning of para (iv) of that provision. Alternatively, the applicant submits that the Court should be satisfied, to the prescribed standard, and for the purposes of para (vi) of the provision, that the interim control order would substantially assist in preventing the provision of support for, or the facilitation of, a terrorist act. Satisfaction of either paragraph would be sufficient for an interim control order to be made, subject to satisfaction of the requirements of s 104.4(1)(d).
11 As to s 104.4(1)(d), the applicant submits that each control is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act; 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.
12 Although the structure of Div 104 of Pt 5.3 of the Code contemplates that the request for an interim control order will be an ex parte procedure, subject to later confirmation in accordance with the procedures stipulated in Sub-Div D (ss 104.12 - 104.17), the respondent has appeared, by counsel, on the present application. Orders made on 22 December 2020 by the then Duty Judge provided for the respondent to file and serve any affidavits on which he wished to rely, and any written submissions. The respondent has not filed any affidavits. He has, however, provided written submissions and made oral submissions at the hearing of this application.
13 The respondent accepts, correctly in my view, that he has been convicted of an offence "relating to terrorism" within the meaning of s 104.4(1)(c)(iv) of the Code and that, accordingly, this Court can make an interim control order in relation to him. The question of substance that remains is whether the interim control order sought by the applicant should be made. As to this, the respondent concedes, properly, that some controls are clearly justified in light of both the operation of Div 104 and the nature of his conduct. He contends, however, that it does not follow from this concession that all the controls sought by the applicant are justified.
14 In order to assess what is reasonably necessary and reasonably appropriate and adapted in the circumstances, the respondent submits that the offence created by s 102.8(1) of the Code, for which he was convicted, is one of the least serious terrorism offences. Indeed, he submits that it appears to be "the least serious" terrorism offence. Echoing the words of the sentencing judge, the respondent submits that it is an offence which, contrary to the traditions of the common law, exposes citizens to potentially severe punishment as a result of "guilt by association". He submits that the nature of the support provided by him for which he was convicted and sentenced is "a long way removed from any actual terrorist act or foreign incursion activity".
15 The respondent argues that his correspondence with various people, both inside and outside prison, indicates that he remains committed to a strict form of Islam, but that this is not an offence and does not of itself suggest that he will involve himself in criminal activities in the future. He has no previous criminal record. The respondent points to the finding by the sentencing judge that, although he has made contact, while in prison, with a few people who hold extremist views, there is nothing in the correspondence that espouses any philosophy of violent jihad or other inclinations towards terrorism. In fact, the respondent points to the applicant's statement in her affidavit that she does not anticipate that the respondent would, himself, commit a terrorist act.
16 In his written submissions, the respondent submits:
…the proposed orders sought by the applicant need to be viewed in the context of a person who has committed what appears to be the least serious terrorist offence known to the law, who is not violent, who has not advocated or planned any violent acts and while his religious focus has been described as 'extreme', there is no suggestion that is sought to impose it on anyone else.
17 Without debating whether the offence created by s 102.8(1) is the least serious terrorist offence created by the Code, the applicant accepts that, on the spectrum of offences, it is at the "less serious" end. This is not to say, however, that the offence is not objectively serious. I observe, as the sentencing judge also observed, that the maximum penalty imposed by the Code (three years' imprisonment) indicates that the offence created by s 102.8(1) is a serious one when considered in the context of all offences known to the criminal law.
18 It is important to record that the sentencing judge remarked on the clear evidence of the respondent's radicalisation which, his Honour concluded, was a substantial part of the respondent's motivation to associate with people he knew to be members of a terrorist organisation. The sentencing judge also noted that there was no evidence that the respondent had been "de-radicalised".
19 Further, the sentencing judge was unable to accept that the respondent had established any contrition or remorse for his offending. On the basis his youth, prior good character and family support, his Honour was only prepared to find that there were "some prospects" of the respondent's rehabilitation. Even then, his Honour was not prepared to give this consideration much weight. His Honour noted the extreme nature of the respondent's views and reasoned that these views must be taken into account in considering the protection of the community.
20 This observation is particularly pertinent when regard is had to the objects of Div 104 expressed in s 104.1, namely protecting the public from a terrorist act; preventing the provision of support for, or the facilitation of, a terrorist act; and preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country. Section 104.4(2) of the Code stipulates that these objects are a paramount consideration when assessing whether each control sought to be imposed by an interim control order is reasonably necessary, and reasonably appropriate and adapted, for the purposes set out in s 104.4(1)(d).
21 Commendably, the parties have discussed the controls which the applicant seeks and have reached agreement on some matters that would otherwise be in contest between them. Unfortunately, their opportunity to engage in discussions has been limited. The parties' agreement does not, of course, relieve the Court of its own task under s 104.4, and s 104.4(1)(d) in particular. But, for the purposes of these reasons, it is convenient to focus on the controls which remain in dispute, at least as between the parties.
22 When, in dealing with these issues, I refer to a control sought by the applicant as "proportionate" I mean that, on the material presently before the Court (bearing in mind that the present application is interlocutory in character and that further evidence may be before the Court at a confirmation hearing), the control is reasonably necessary, and reasonably appropriate and adapted, for at least one of the purposes specified in s 104.4(1)(d) of the Code.
23 As a general observation, I also note that the Court's power to vary an interim control order at a confirmation hearing is limited to removing a control: see s 104.14(7)(b). This is consonant with s 104.11A(2)(b) of the Code which provides that an interim control order can be varied only if the variation does not involve adding any obligations, prohibitions or restrictions to the order. I accept the applicant's submission that I should proceed cautiously before limiting a proposed control that is prima facie justified, in terms of s 104.4(1)(d), on the material presently before the Court, in circumstances where the respondent has not yet filed evidence or has merely provided an untested explanation for an amendment he seeks, which can only be fully explored at a confirmation hearing.