Section 104.4(1)(c)(vii) - support for hostile activity … in a foreign country
21 The further and alternative element in ss 104.4(1)(c)(vii) in my opinion is an unassailable basis upon which this condition is satisfied. The offence in s 119.4 of the Criminal Code involves conduct preparatory to the commission of the hostile activity whether by that person or not. The agreement to which the respondent was a party was that another person, Mr Cerantonio, would engage in the hostile activity in the Philippines, namely to encourage others to attempt to overthrow the government of the Southern Philippines by force or violence. As Croucher J observed in his sentencing remarks referred to earlier, the agreement as to how the encouragement of others was to occur, and who those others might be, were unknown, and accordingly the ultimate aim of the plan was only remote. The fact that the agreement was not fully formed in relation to how it was to be implemented does not detract from the fact that the essence of the respondent's conviction was engaging in conduct in Australia in preparation for a commission of an offence contrary to s 119.1 to be implemented in a direct sense by Mr Cerantonio in the Philippines. That the agreement contemplated a number of steps by others in the Philippines, commencing with Mr Cerantonio's encouragement of unspecified persons to overthrow the government of the Southern Philippines, does not render the respondent's conduct any less capable of being properly characterised as meeting the description of s 104.4(1)(c)(vii) of the Criminal Code. For these reasons, in my opinion this sub-section provides a further and alternative basis for satisfying the third precondition.
22 The fourth precondition for the making of an interim control order is contained in ss 104.4(1)(d). Sub-sections 104.4(2) and (2A) of the Code contain relevant matters that the Court must have regard to in determining whether the obligations imposed on the person the subject of the order is reasonably necessary, reasonably appropriate and adapted to the relevant purposes. In McCartney v EB, Wigney J at [47] and [48] conveniently extracted the statements by Gleeson CJ in Thomas v Mowbray (2007) 233 CLR 307 at [19] and by Gummow and Crennan JJ at [99] concerning the task of the court when considering this precondition. Gleeson CJ summarised the requirement as involving an evaluation of the proportionality of the control order and Gummow and Crennan JJ characterised the task of assessing what is "reasonably necessary" and what is "reasonably appropriate and adapted" for the purpose of protecting the public from a terrorist act as involving a "balancing exercise" between the attainment of that protection and the impact upon the circumstances of the person in question.
23 As I have noted above, the respondent's sentence expires on 23 January 2020. The originating application was filed on 19 December 2019 and was listed for mention before me on 20 December 2019, at which time I fixed the application for hearing on 20 January 2020. At the mention I urged the parties to engage in discussions with the view to narrowing the ambit of any dispute concerning the terms of the proposed interim control order.
24 At the hearing of the application on 20 January 2020, most of the time was occupied with submissions concerning the question of the Court's power to make a control order referred to above. I again encouraged the parties to continue any discussions concerning the terms of the interim control order. These discussions have led to a resolution so far as the parties are concerned as to the terms of the interim control order, save in relation to two controls which remain in dispute between the parties. Before turning to these disputed controls, I note that notwithstanding the agreement between the parties as to the balance, the Court must be satisfied that the controls are reasonably necessary, reasonably appropriate and adapted as required by s 104.4(1)(d). I am satisfied that each of the controls which are not disputed for the purpose of making an interim control order are proportionate based upon all of the circumstances set out in the evidence before me and in particular in paragraphs 33 to 52 of the applicant's affidavit sworn on 19 December 2019.
25 I turn now to the two disputed controls.
26 The two disputed controls are:
(1) Control 1, pursuant to which the applicant seeks to impose a curfew requiring the respondent to remain at his premises between 10 pm and 6 am; and
(2) Control 2, pursuant to which the applicant seeks an order requiring the respondent to report to a specified police station twice weekly on every Monday and Thursday between 11 am and 7 pm.
27 As explained by the applicant in paragraph 27 of her affidavit, while the individual controls are separate they are also complimentary to one or more other controls. The aim of the curfew and reporting obligations is to assist police to monitor the respondent and ensure compliance with other controls, such as those prohibiting the respondent from attending certain exclusion zones near airports, and control 4, which prohibits the respondent from leaving Australia.
28 In relation to the curfew, the respondent contends that there is no greater risk of him engaging in behaviour contrary to the objective of protecting the public from terrorist activities between the hours of 10 pm and 6 am and he challenges the utility of the curfew as a monitoring tool. For the purpose of making an interim control order I am not persuaded by the respondent's contentions as to the inutility of a curfew nor that a curfew is disproportionate or inappropriately adapted. In my view, there is considerable force in the proposition that the controls should be considered as a suite of controls which, working together, assist in attaining the objective of protection of the community through effective monitoring and supervision of the respondent. In the alternative, the respondent submitted that if any curfew were to be imposed it should be for the hours between 12 am and 6 am. There is necessarily a degree of arbitrariness in setting curfew hours. It is also self-evident that imposing a curfew upon the liberty of an individual is an intrusive constraint upon that person's freedom. Doing the best I can to balance the competing interests, I consider that the curfew between the hours of 12am and 6am more fairly strikes that balance and thus better adapts the control to the circumstances of this application. It remains open for the applicant and respondent to seek to vary this and other controls at the confirmation hearing to be fixed in several months' time.
29 In relation to the reporting requirement, in my opinion it is both reasonable and proportionate, particularly in the early period post release, that the applicant report twice per week to the nominated police station. In my opinion, this is not unduly inconvenient or intrusive upon the respondent's personal freedom. I also note that the respondent has not suggested that the specified police station is inconveniently located to his residence.