HEADNOTE
[This headnote is not to be read as part of the decision]
The State applied for an extended supervision order pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) in respect of the appellant, who was serving a sentence of imprisonment due to expire on 17 June 2020. Following a preliminary hearing, the Supreme Court of New South Wales made interlocutory orders on 15 June 2020 (a) directing that the appellant attend examinations by a psychiatrist and a psychologist for the purpose of furnishing reports to the Court and (b) imposing an interim supervision order for 28 days (which order was twice subsequently renewed).
The making of the interim supervision order required attention to be had to the test for the making of any extended supervision order. Section 20 of the Act provides that the Supreme Court may make an extended supervision order if (a) the eligible offender is in custody or under supervision, (b) an application is made in accordance with the relevant Part of the Act, (c) the Supreme Court is satisfied that the offender is, relevantly, a "convicted NSW terrorism activity offender", and (d) the Supreme Court is satisfied "to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision". It was common ground that conditions (a) and (b) were satisfied.
However, the appellant denied that he was a "convicted NSW terrorism activity offender" as defined in s 10 of the Act and complained that the primary judge failed to apply the heightened standard of satisfaction "to a high degree of probability". Relevantly, s 10(1) provides that an eligible offender is a "convicted NSW terrorism activity offender" if the offender "is making or has previously made any statement … advocating support for any terrorist act or violent extremism", which by the operation of s 10(1A)(a)(ii) includes "using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism". The use or display of images on which the State relied was a single Facebook post by the appellant, displaying a picture of what appears to be a short Arabic word or words together with a microphone, underneath which were the words "'Heed the call' - New Nasheed from Islamic State's Ajnad Media". There was no evidence disclosing whether the image made sense as one or more Arabic words and if so, what their meaning was.
The appellant appealed from the interlocutory orders.
The issues in the appeal were:
i) Whether on the evidence adduced by the State the appellant was a "convicted NSW terrorism activity offender" within the meaning of s 10 of the Act, properly construed;
ii) Whether the primary judge failed to apply the heightened standard imposed by s 20(d) of the Act;
iii) Whether s 10 of the Act should be read down on the basis of the constitutionally implied limitation on legislative power to restrict political communication.
The Court held, dismissing the appeal:
As to issue (i), per curiam:
- The proposition that the term "images or symbols" in s 10(1A)(a)(ii) excluded alpha-numeric images or symbols could not be accepted: at [36]-[37]. Whether s 10(1A)(a)(ii) was engaged fell to be assessed by the evaluation of all the evidence bearing on the material posted by the appellant on Facebook, and there was evidence supporting the conclusion that the appellant had used or displayed an image or symbol associated with Islamic State: at [38]-[39].
- Section 10(1A)(a)(ii) is a deeming provision. The essence of the provision is that it is sufficient to use or display an image or symbol associated with a group that supports terrorist acts or violent extremism to fall within the definition of "convicted NSW terrorism activity offender". It is not necessary to use or display images which directly advocate support for terrorist acts or violent extremism: at [63]-[65].
As to issue (ii), per curiam:
- There was no reason to conclude that the primary judge had not applied the heightened standard required under the Act, on the basis of the State's case taken at its highest, in circumstances where the primary judge had said that he was applying the relevant principles in terms and had had regard to the totality of the evidence in reaching his conclusion: at [40]-[52].
As to issue (iii), per curiam:
- Section 10(1A)(a)(ii) imposed no legal burden on political communication and the case turned on the provision's practical effect. It could be doubted whether even a slight burden had been established where it had not been shown that there was any, or any perceived, material inhibition of political communication from the risk of being joined as a defendant to an application for an extended supervision order made under the Act: at [70]-[78].
Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128 applied; Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 referred to.
- In determining whether s 10(1A)(a)(ii) was reasonably appropriate and adapted to advance its legitimate object of protecting the community from unacceptable risks of terrorism offences, the questions of suitability, necessity and adequacy in its balance were useful: at [80]-[81]. It was suitable for the statute to extend to persons shown to have used or displayed images associated with organisations that support terrorist acts: at [81].
- The appellant had not identified any obvious and compelling alternative, reasonably practical means capable of achieving the purpose of s 10(1A)(a)(ii). To require, as the appellant urged, that an image or symbol be reasonably construed as advocating support for terrorist acts or violent extremism would not give rise to an effective, clearly articulated test in circumstances where all images and symbols have meanings determined by context. The appellant's alternative proposal, requiring an intentional element, would introduce uncertainty and unworkability: at [82]-[85].
McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 applied.
- Section 10(1A)(a)(ii) was adequate in its balance, having regard to its legitimate purpose of protecting the community and the slightness of the burden on political communication: at [86].
Clubb v Edwards; Preston v Avery [2019] HCA 11; 93 ALJR 448 applied.