Booth v Khazaal

Conditions that must be satisfied before the Court can confirm an ICO under section 104.14(7) of the code 3 For s 104.14 of the Code to apply, three conditions must be satisfied: s 104.14(1A) of the Code. 4 First, an ICO has been made in relation to a person: s 104.14(1A)(a). 5 Second, an election under s 104.12A to confirm the order has been made: s 104.14(1A)(b). 6 Third, the Court is satisfied on the balance of probabilities that s 104.12 and s 104.12A(2) have been complied with in relation to the order: s 104.14(1A)(c). As will be seen, s 104.12 and s 104.12A include a number of separate conditions and requirements, some fairly formal and others not so.

The first and second conditions: ss 104.14(1A)(a) and (b) 7 There can be no dispute that the conditions in ss 104.14(1A)(a) and (b) have been satisfied. 8 As has already been noted, an ICO order was made against Mr Khazaal on 26 August 2020. 9 As for the election, s 104.12A(1) of the Code provides that at least 48 hours before the day specified in the ICO as the date on which the person may attend court for the court to confirm, revoke or declare the ICO to be void, the senior AFP officer who requested the ICO must elect whether to confirm the order and give a written notification of the election to the issuing court. Commander Booth has filed evidence which establishes that on 7 September 2020, she signed a notification of an election to confirm the ICO which was made in relation to Mr Khazaal. A copy of that notification was annexed to one of the affidavits filed in support of the confirmation.

The third condition: compliance with s 104.12 and s 104.12A(2) of the Code 10 Sections 104.12 and 104.12A(2) of the Code require certain documents to be served on the person the subject of the ICO and that the person be informed about certain matters. 11 Section 104.12 provides that as soon as practicable after an ICO is made, and at least 48 hours before the day on which the person may attend court for the court to confirm, revoke or declare the ICO to be void, an AFP member must: serve the order personally on the person in relation to whom the order was made; inform the person of the information specified in s 104.12(1)(b); and ensure that the person understood that information. 12 The information specified in s 104.12(1)(b) is: the effect of the order; the period for which the order (if confirmed) is in force; the effect of ss 104.12A, 104.13, 104.14, 104.18 and 104.27 (and, if appropriate, s 104.22); that the person has a right to obtain legal advice and legal representation; that the person may have appeal and review rights in relation to the decision of the issuing court to make the order; the person's right to attend court on the day specified for the purposes of s 104.5(1)(e); the right of the person or one or more representatives of the person to adduce evidence or make submissions under s 104.14(1) if the order is confirmed; that the person may have appeal and review rights in relation to any decision of the issuing court to confirm the order; the person's right to apply under s 104.18 for an order revoking or varying the order if it is confirmed; and the right of the person or one or more representatives of the person to adduce evidence or make submissions under s 104.19(3) or s 104.23(4) in relation to an application to revoke or vary the order if it is confirmed. 13 Subsection 104.12A(2) provides, relevantly, that the senior AFP officer must also serve on the person in relation to whom the ICO was made a copy of the notification of election to confirm, together with the documents referred to in ss 104.2(3)(aa) and 104.3(d) of the Code. Those documents are, in summary, some of the documents that were required at the ICO stage: the statement of facts relating to why the ICO should be made; the statement of facts, if any, relating to why the ICO should not be made; the explanation as to why each of the proposed obligations, prohibitions and restrictions should be imposed; and a statement of facts relating to why any of the obligations, prohibitions or restrictions should not be imposed. 14 Commander Booth filed affidavit evidence which established, on the balance of probabilities, that each of the requirements or conditions in ss 104.12 and 104.12A(2) of the Code had been complied with. It is unnecessary to consider that evidence in any detail. Mr Khazaal did not challenge or impugn that evidence or contend that it did not establish compliance with ss 104.12 and 104.12A(2) of the Code. In summary, the evidence established that the ICO, a document explaining the ICO and Arabic translations of those documents were served on Mr Khazaal on 30 August 2020. The AFP officer who served those documents also informed Mr Khazaal, through an interpreter, of the s 104.12(1)(b) information and took appropriate and satisfactory steps to ensure that Mr Khazaal understood that information. There was also evidence that established that the notification of election to confirm the ICO and all of the evidence adduced and written submissions filed in support of the application for the ICO, including the s 104.2(3)(aa) and s 104.3(d) documents, were personally served on Mr Khazaal on 16 September 2020. 15 It follows that the conditions necessary for s 104.14 of the Code have been satisfied and the Court can entertain the application to confirm the ICO made in relation to Mr Khazaal.

THE MATERIAL THAT MUST BE CONSIDERED BEFORE ACTION IS TAKEN UNDER SECTION 104.14(7) 16 Subsections 104.14(3) and (3A) of the Code specify certain material that the Court must consider before taking any action under s 104.14 of the Code. Those subsections provide as follows: (3) Subject to subsection (3A), before taking action under this section, the court must consider: (a) the original request for the interim control order; and (b) any evidence adduced, and any submissions made, under subsection (1) in respect of the order. (3A) To avoid doubt, in proceedings under this section, the issuing court: (a) must take judicial notice of the fact that the original request for the interim control order was made in particular terms; but (b) may only take action on evidence adduced, and submissions made, under subsection (1) in relation to the confirmation of the order. 17 The combined effect of ss 104.14(3) and (3A) of the Code is, in summary, as follows. 18 First, before making an order confirming an ICO or otherwise, the Court must take into consideration the terms of the ICO which has been made. It is, however, unnecessary for either party to tender the ICO, as the Court must in any event take judicial notice of it. 19 Second, the Court can only act on the evidence adduced for the purposes of, and the submissions made at the hearing of, the confirmation application. It follows that, even if the evidence and circumstances remain unchanged from the time that the ICO was made, the person who applies for confirmation of the ICO is required to tender afresh the evidence relied on at the ICO stage and, it seems, repeat the submissions that were made at the ICO stage. 20 The Court has, in accordance with ss 104.14(3)(a) and (3A)(a), considered the original request for the ICO and has taken judicial notice of the fact that the original request for the ICO was made in particular terms. 21 Commander Booth adduced evidence in relation to the confirmation order in accordance with s 104.14(1) of the Code. That evidence included the evidence adduced at the ICO stage. Commander Booth also made submissions in relation to the confirmation order. Those submissions included or incorporated the submissions made at the ICO stage. 22 Mr Khazaal did not adduce any evidence or advance any substantive submissions in relation to the confirmation. 23 The Court has, as required by s 104.14(3), considered the evidence adduced and the submissions made. The Court has, in compliance with s 104.14(3A)(b), acted on that evidence and those submissions alone.

satisfaction in terms of SUBSECTIONS 104.4(1)(c) and 104.4(1)(d) 24 The effect of ss 104.14(6) and (7) is that, where s 104.14 applies, the Court may do one of four things. 25 First, the Court may declare, in writing, the ICO to be void if satisfied that, at the time of making the order, there were no grounds on which to make the order: s 104.14(6) of the Code. Neither party contended that the Court should declare the ICO to be void, or that there was any basis for the Court to be satisfied that, at the time of the making of the order, there were no grounds on which to make the order. 26 Second, the Court may revoke the order if, at the time of confirming the order, the Court is not satisfied "as mentioned in" s 104.4(1)(c): s 104.14(7)(a) of the Code. 27 Third, the Court may confirm and vary the order by removing one or more obligations, prohibitions or restrictions if, at the time of confirming the order, the Court is satisfied as mentioned in s 104.4(1)(c) but is not satisfied as mentioned in s 104.4(1)(d): s 104.14(7)(b) of the Code. 28 Fourth, the Court may confirm the order without variation if, at the time of confirming the order, the Court is satisfied as mentioned in ss 104.4(1)(c) and (d): s 104.14(7)(c) of the Code. 29 Commander Booth, in substance, contended that the Court should take the fourth of those options: that is, to confirm the order without variation. I say in substance because Commander Booth did propose that various minor variations be made to the ICO. Those proposed variations, however, were not variations that were said to be necessary to ensure that the Court was satisfied as mentioned in s 104.4(1)(d) of the Code. 30 In any event, the critical question for the purpose of this application is whether the Court is satisfied "as mentioned in" ss 104.4(1)(c) and (d) of the Code. 31 The important point to emphasise in this context is that the Court was satisfied as mentioned in both ss 104.4(1)(c) and (d) of the Code at the ICO stage. Neither party adduced any evidence, or advanced any submissions, which suggested that anything had changed since the ICO stage such that the Court should no longer be satisfied of the matters referred to in ss 104.4(1)(c) and (d) of the Code. For more abundant caution, and at risk of repetition, the requirements of those provisions should again be briefly addressed.

Satisfaction as mentioned in s 104.4(1)(c) of the Code 32 Subsection 104.4(1)(c) provides, in summary, that before making an ICO, the Court must be satisfied on the balance of probabilities that the making of the ICO would either substantially assist in preventing a terrorist act, or that the person against whom the ICO is sought had engaged in certain conduct, or had been convicted of certain types of offences, including, relevantly, an offence relating to a terrorist act (within the meaning of s 100.1). The Court was satisfied on the balance of probabilities, at the ICO stage, that Mr Khazaal had been convicted of such an offence: ICO Judgment at [12]-[13]. 33 Nothing has changed since the ICO stage. Neither party suggested that there was any reason or basis upon which the Court should now not be satisfied on the balance of probabilities that Mr Khazaal had been convicted of an offence relating to a terrorist act. 34 The Court is, accordingly, satisfied "as mentioned in" s 104.4(1)(c) of the Code.

Satisfaction as mentioned in s 104.4(1)(d) of the Code 35 Subsection 104.4(1)(d) of the Code provides, in summary, that the Court may make an ICO if it 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 either 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. 36 At the ICO stage, the Court considered the proposed obligations, prohibitions and restrictions to be imposed on Mr Khazaal at considerable length: ICO Judgment at [20]-[65]. The Court was ultimately satisfied, on the balance of probabilities, that each of the obligations, prohibitions and restrictions that were included in the ICO as made were reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act and preventing the provision of support for or the facilitation of a terrorist act, and or alternatively, preventing the provision of the support for or the facilitation of the engagement in a hostile activity in a foreign country: ICO Judgment at [66]. 37 Once again, nothing has changed since the ICO stage in respect of the proportionality of the relevant "controls" in the ICO. Neither party suggested that there was any reason or basis upon which the Court should now not be satisfied on the balance of probabilities that the controls included in the ICO were not proportionate in the required sense. 38 The Court is, accordingly, satisfied "as mentioned in" s 104.4(1)(d) of the Code.

CONCLUSION in relation to confirmation 39 The Court is satisfied that the relevant conditions that must be satisfied before s 104.14 applies have been satisfied or complied with. 40 The Court is also, on the basis of the evidence adduced and the submissions made in accordance with s 104.14(1) of the Code, satisfied "as mentioned in" ss 104.4(1)(c) and (d) of the Code. The Court accordingly can made an order pursuant to s 104.14(7)(c) of the Code confirming the ICO without variation. That is, in the circumstances, also the appropriate course, particularly in the absence of any opposition by Mr Khazaal. 41 The ICO will accordingly be confirmed without variation, other than the minor variations to which reference was made earlier. Accordingly, the Court will make orders in accordance with the short minutes of order that have been provided to the Court, save that order 1 should read "pursuant to s 104.14(7)(c) of the Criminal Code" rather than "pursuant to s 104.14(7)(b)". I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.