Booth v Namoa

Consideration 28 On my assessment, there is still a real and reasonable risk that Ms Namoa remains a person about whom it is not possible conclusively to say that she is not at risk of relapsing to, or actually maintaining, the offending behaviours that led to her conviction, although, as I have said, there are many positive indications that she has abandoned those behaviours. 29 The statement of facts pursuant to s 104.2(3)(aa)(i) relating to why Commander Booth contended that the interim control order should be made contains evidence that Ms Namoa wrote letters on 28 October 2018 and 2 July 2019 to two other inmates in the prison in which she described herself as "your baby terrorist". The content of those letters may be explicable as consistent with the advice of the prison officials to which Fagan J referred, namely that Ms Namoa maintain a semblance in prison that she was adhering to her earlier beliefs and behaviours, for her own protection in that environment. 30 The problem with which I am faced is that in cases involving persons who have been prepared to ascribe to, and act on, fundamentalist, violent or antisocial beliefs or practices, it is not always possible, objectively, to ascertain whether a subsequent renunciation is genuine or, even if genuine, one that the person can maintain because of his or her personality traits, education and psychological conditions that led to the initial adoption of those toxic beliefs. Experience of life requires a recognition that vulnerable people, such as Ms Namoa, are able to exhibit strength in certain situations, but when re-exposed to the company of persons who still adhere to those toxic beliefs or practices, will not be able to maintain the reformed strength and will succumb to the previous malign influence. 31 The evidence presently before me indicates that Ms Namoa is a person who is vulnerable and, in the past, has succumbed to those vulnerabilities by adopting jihadist or fundamentalist beliefs and behaviours that resulted in her conviction. On her evidence and Fagan J's findings that accepted that evidence, she maintained those behaviours for some time from the age of about 15 until abandoning those beliefs and behaviours in prison. 32 In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 to 575, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said: The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. (emphasis added) 33 The making of a control order requires the Court to engage in the process of evaluating, through the balancing exercise that Div 104 of the Code prescribes, what obligations, prohibitions and restrictions ought be imposed on a person, having regard to what is reasonably necessary, reasonably appropriate and adapted for the purposes of protecting the public from a terrorist attack or preventing the provision of support for, or the facilitation of, a terrorist act. 34 In Thomas v Mowbray (2007) 233 CLR 307 at 331 [19], Gleeson CJ said that a requirement of that kind would sometimes be described as a requirement of proportionality and that judgments about proportionality often require courts to evaluate considerations that are, at least, as imprecise as those involved in formulating a control order. He said (233 CLR at 334 [28]): I am unable to accept that there is a qualitative difference between deciding whether an angry person poses an unacceptable risk to his or her family, or to the community or some section of the community, or whether a sexually dysfunctional man poses an unacceptable risk to women, and deciding whether someone who has been trained by terrorists poses an unacceptable risk to the public. The possibility that the person will do what he or she has been trained to do, or will be used as a "resource" by others who have been so trained, is capable of judicial evaluation. (emphasis added) 35 Gummow and Crennan JJ expressed similar conclusions, with which Heydon J agreed (233 CLR at 526 [651]). Gummow and Crennan JJ described the notion of a sufficient connection between the desired end and the means proposed for its attainment as possibly having its origins in constitutional law. They said that such a connection was capable of judicial application elsewhere, and that s 104.4(1) of the Code was an example (233 CLR at 353 [103]). Callinan J agreed generally with Gummow and Crennan JJ on this issue (233 CLR at 507 [594]-[595], 509 [600]). As Callinan J said (at 507 [595]): The making of orders by courts to intercept, or prevent conduct of certain kinds is a familiar judicial exercise. Every injunction granted by a court is to that end. And every application for an interlocutory injunction requires the court to undertake a balancing exercise, that is to say of the convenience of the competing interests, and the efficacy and necessity of the orders sought. Injunctions to restrain public nuisances require the same approach. Orders to prevent apprehended violence, to bind people over to keep the peace, and, more recently, as in Fardon v Attorney-General (Qld)[(2004) 223 CLR 575], to approve curially continued detention as a preventative purpose to protect the public, are exercises undertaken, and, in my view, as here, better so undertaken by the courts. Protection of the public is frequently an important, sometimes the most important of the considerations in the selection of an appropriate sentence of a criminal. That too is necessarily both a balancing and a predictive exercise. It is one that necessarily takes account of the role of the police and other officials in preventing crime, and even of further criminal conduct on the part of the offender to be sentenced, as well as his personal circumstances. (emphasis added) 36 In McCloy v New South Wales (2015) 257 CLR 178, French CJ, Kiefel, Bell and Keane JJ discussed the implied constitutional freedom of communication on government and political matter and the test of proportionality, being the test that the Court applies to determine whether an impugned law is reasonably appropriate and adapted for the purposes of maintaining a system of representative government for which the Constitution provides. They discussed the concept of proportionality, saying (257 CLR at 215-216 [74]): Proportionality provides a uniform analytical framework for evaluating legislation which effects a restriction on a right or freedom. It is not suggested that it is the only criterion by which legislation that restricts a freedom can be tested. It has the advantage of transparency. Its structured nature assists members of the legislature, those advising the legislature, and those drafting legislative materials, to understand how the sufficiency of the justification for a legislative restriction on a freedom will be tested. 37 Here, of course, the requirements of Div 104 of the Code are a legislative and constitutionally valid response to a situation in order to achieve the objects in s 104.1 (see Thomas v Mowbray (2007) 233 CLR 307). The Parliament enacted Div 104 for the purpose of 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 hostile activity in a foreign country. I must take into account those objects as a paramount consideration in evaluating the terms and provisions of the interim control order that I am asked to make. 38 French CJ, Kiefel, Bell and Keane JJ said in McCloy (257 CLR at 217 [79]) that there were three stages for assessing the proportionality of a statute, namely, first, whether it was suitable, secondly, it was necessary, and, thirdly, adequate in its balance. They said that suitability was also referred to as "appropriateness" or "fit", but the measure was to be tested by ascertaining whether it would contribute to the realisation of the statute's legitimate purpose. Unless that could be done, its use could not be said to be reasonable. The test at the first stage required there be a rational connection between the provision in question and the statute's legitimate purpose, so that its purpose could be furthered. 39 Their Honours said that the second stage of the test looked to whether there were other equally effective means of achieving the legislative object - which had a less restrictive effect on the freedom and were obvious and compelling. In cases where such alternative measures were available, the use of a more restrictive one was not reasonable and could not be justified (McCloy 257 CLR at 217 [81]). 40 French CJ, Kiefel, Bell and Keane JJ identified the third stage, adequacy, as involving a question of whether the burden on the freedom was undue or impermissibly burdensome, again having regard to the statutory purpose (257 CLR at 218 [86]).

The controls 41 Here, the controls as now proposed require Ms Namoa to nominate where she intends to live to the AFP officer who is "the superintendent" within 24 hours from the time that the interim control order comes into effect, so that she will remain at those premises between 10 pm and 6 am during the currency of the order (control 1). Control 2 requires her to report every Monday between 7 am and 7 pm to police at a police station near to where she lives. Control 3 prohibits her from being at Sydney Airport and the areas of the overseas terminals at Circular Quay and White Bay, being places where she may be able to depart from Australia, although she is permitted to use a train that passes through the airport for transport other than to the airport, if she need do so, including for work or education. Control 3 prohibits her from being at the residential addresses of two persons who appear to have been involved in her former jihadist behaviours. She is prohibited from leaving Australia or engaging in activities for acquiring, or possessing, or storing documents or other things relating to explosives, firearms, or counter-surveillance matters unless those things are effectively freely available through ordinary news media or in material that are served on her for the purposes of these proceedings (controls 4, 5, and 7). 42 The material that was in evidence in the criminal trial demonstrated that Ms Namoa had had access on a variety of devices and platforms to highly disturbing jihadist and fundamentalist material and that the viewing of those matters may have led to her engaging in the conspiracy of which she was convicted. 43 She will also be prohibited from viewing or reading on any devices other than in ordinary news media, material that relates to various terrorist activities (control 6). She cannot use, rent or purchase any vehicle which exceeds a gross vehicle mass of 4.5 tonnes (control 8). 44 The controls also will restrict her use of mobile and fixed telephones, computer devices, social media and similar communication platforms. However, those restrictions are subject to Ms Namoa being able to inform the superintendent of her use of those communication and electronic devices in certain limited ways, including allowing her to use Facebook and Facebook Messenger on a single account. 45 Initially, control 9 sought to prohibit Ms Namoa from undertaking paid employment without first notifying the superintendent in writing and submitting written information about the proposed employment, details of the employer, including the name and place of business and the nature of the work that would be undertaken. 46 I raised with the parties that a control to that effect may effectively prejudice her ability to find any useful employment because it would require Ms Namoa, in advance, to inform employers of the interim control order's impact on her restricted ability to access any form of telephony, or computer or electronic devices, which are now commonplace in daily life, including in almost all places in which people with her qualifications and abilities could find work. The parties were able to refine the prohibitions that are proposed to apply so as to enable Ms Namoa to obtain work. She must inform the superintendent before she undertakes paid employment. Once employed, she may use only one device in each category for the purposes of her work and that, when she does so, she must, within 24 hours, inform the superintendent of the device and any relevant information to enable any use of it by her to be checked (controls 9, 12-20). 47 Controls 10 and 11 prohibit or restrict Ms Namoa from possessing or using weapons or weapon making articles or associating with particular persons or classes of person. 48 Finally, control 21 requires her to consider in good faith participating in counselling or education relating to her spiritual, emotional and physical wellbeing with a suitably qualified professional counsellor or publicly recognised religious leader for at least one hour per week. 49 I am also mindful that the lack of exposure to freedom in the community has left Ms Namoa in the position, at present, where it is not feasible to ascertain with any certainty that she will behave in any particular way on her release. According to her evidence, that Fagan J accepted, she has had to conform to what other fundamentalists within the prison system expected of her, albeit that subsequently she has disavowed those beliefs to the prison officials themselves and in the sentencing process before Fagan J. Therefore, there is still a risk that, on release, she may or may not revert to her previous offending behaviour, or the behaviours that led to her offending and which she maintained for a period while being held on remand pending her trial.

Conclusion 50 I have considered the terms of the proposed controls, having regard to the fact that Ms Namoa's behaviours are untested outside the prison environment and in light of the circumstances of her offending. 51 Having regard to the protective objects of Div 104 in s 104.1, I am satisfied on the balance of probabilities that, first, each of the proposed obligations, prohibitions and restrictions in the final version of the proposed interim control order, that I have settled with the assistance of counsel for the parties, imposes on Ms Namoa no more than is reasonably necessary, reasonably appropriate and adapted for the purpose of the paramount consideration of protecting the public from a terrorist act, and preventing the provision of support for or the facilitation of a terrorist act, and, secondly, the proposed orders are also reasonably necessary, reasonably appropriate and adapted to minimise, consistently with the object of the rehabilitation of Ms Namoa, the impact of the controls on her financial and personal circumstances, having regard to the time between her release from prison on Sunday, 22 December 2019, and the confirmation hearing on 3 February 2020. 52 For these reasons, I am of opinion that the interim control order as now proposed should be made on the basis that the confirmation hearing will be fixed for 3 February 2020. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.