Cheema v State of New South Wales

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:

1. 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].
2. 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:
3. 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:
4. 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.
5. 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].
6. 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.
7. 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.

Judgment

1. THE COURT: Mr Ahsan Kamal Cheema appeals from orders pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) directing that he attend examinations by a psychiatrist and a psychologist for the purpose of furnishing reports to the Supreme Court for the making of an extended supervision order (order 2) and imposing an interim supervision order for a period of 28 days (orders 3 and 4). His notice of appeal is dated 13 July 2020, which is the day on which the original interim supervision order had expired, although a further order had been made by the Court constituted by a different judge, without opposition from Mr Cheema. When his appeal was heard, on 17 August 2020, the psychological and psychiatric examinations had occurred, with reports having been obtained and served in accordance with a timetable for a final hearing on 31 August and 1 September 2020.
2. Those circumstances suggest a lack of utility in the current appeal. Two matters were urged in opposition to those considerations by Mr Robinson SC, who with Dr Lucy appeared for the appellant in this Court as they had at first instance. The first was that the Act has an important impact upon the liberty of the appellant, and by s 53 confers an appeal as of right, even from interlocutory orders such as those made by the primary judge. Even so, if the appellant were seeking an extension of time to bring an appeal which was entirely lacking in utility, it would be far from automatic that an extension would be granted.
3. Secondly, the appeal seeks orders that the summons be dismissed, and if that occurs, no extended supervision order can be made. The grounds of appeal are directed to the conclusion that the appellant was incapable of falling within the scope of the Act, as properly construed and on the evidence adduced by the State. The significance of the appeal is thus to impugn the basis of the State's pending application for a extended supervision order for a period of two years, listed for hearing on 31 August.
4. The notice of appeal has proceeded with a high degree of expedition. Both parties appear to have co-operated in the abbreviated timetable for the exchange of submissions to achieve an early hearing, less than five weeks after filing. Further, both sides fully and fairly articulated their submissions in writing, with the result that oral submissions were succinct and pointed. Those steps have assisted this Court to resolve the appeal with the promptness requested by the appellant.
5. It is possible that a short extension of time is required to bring the appeal. Such application was made orally, when the appeal was heard, and in the absence of any opposition from the State, to the extent necessary, it should be granted. However, for the reasons which follow, the appeal should be dismissed. The State did not seek a costs order in the event that the appeal were dismissed.

Factual background

1. For present purposes, an abbreviated background will suffice. The primary judge recorded that the appellant is 37 years old, with a lengthy criminal history involving a range of offences, although no terrorism-related offences. The evidence discloses that his family are of Pakistani background, and strict in their Muslim faith. His parents' marriage was dissolved in 1991 when he was 8 or 9, and the appellant came into conflict with his stepfather, whom his mother married in 1996. The appellant attended private Christian denomination schools from years 1-8 in Sydney, attended schools in Bathurst, Scotland and Chicago the following year, and was expelled from a public high school in Sydney in Year 10.
2. As a teenager, the appellant was charged with larceny, shoplifting, failure to comply with conditions, trespass, drug possession, drug supply, possession of prohibited drugs, being carried in a conveyance without the consent of the owner and break and enter, and obtaining money by deception. When aged 20, in 2004, he was charged with assault occasioning actual bodily harm and sentenced to 8 months imprisonment. In 2005 he was charged with assault with intent to rob while armed with a dangerous weapon but was found not guilty by verdict. In 2005 he was also charged with firearms offences, including firing a firearm in or near a public place and in a manner likely to injure, and was sentenced to a term of imprisonment with a non-parole period of 4 years concluding on 28 November 2009. There were further offences including stalk/intimidate (domestic) and aggravated break and enter and commit serious indictable offence in company, resulting in a further term of imprisonment with a non parole period of 18 months.
3. At the time of the preliminary hearing, the appellant was subject to parole, serving the unexpired portion of a sentence imposed at Liverpool Local Court on 7 March 2019 for the offence of not stopping a vehicle during police pursuit contrary to s 51B(1) Crimes Act 1900 (NSW). The Crown proceeded summarily, and the Local Court imposed a sentence for that and other offences including larceny of a motor vehicle, assault police and resist arrest, of imprisonment for 17 months with a 12 month non-parole period.
4. The Court was told by the appellant's counsel that, after the imposition of the interim supervision order, he had subsequently been charged with the offence of breaching a condition of that order, and had been refused bail, with the charge being listed for directions in the Local Court next month. Section 30 of the Act makes breach of a condition an offence punishable by imprisonment for 5 years. That has an impact upon the running of the most recent interim supervision order to which he is subject, because by reason of s 28(6) the appellant's interim supervision order was suspended while he was in lawful custody; cf Lynn v State of New South Wales [2019] NSWCA 300 at [9]-[12]. However, it has no impact upon the issues raised in this appeal.

Legislation

1. The Act resembles the regime created by the Crimes (High Risk Offenders) Act 2006 (NSW), in that it provides for extended supervision orders and continuing detention orders to be imposed in certain cases after a person has completed serving a sentence of imprisonment. Such an order can only be made after there has been a preliminary hearing, following which the Court has made orders for the appointment of two qualified psychiatrists or psychologists, or one or two of each, to conduct separate examinations of the person and to furnish a report. Those reports are mandatory considerations for the Court at a final hearing for the imposition of an extended supervision order or a continuing detention order.
2. However, there are important differences, not least in the class of persons in respect of whom an application may be made for an extended supervision order or a continuing detention order. In the present case, that turns on whether the State had established that the appellant was a "convicted NSW terrorism activity offender".
3. The application for orders at the preliminary hearing heard by the primary judge required attention to the test to be imposed at any final hearing. If the Court were satisfied that the matters alleged in the material supporting the State's application would, if proved, justify the making of an extended supervision order, then it was required to make orders appointing the psychologist and psychiatrist: s 24(5). If the Court were not so satisfied, it was required to dismiss the application.
4. Section 20 provides: "20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if: (a) the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed): (i) while serving a sentence of imprisonment for a NSW indictable offence, or (ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order, and (b) an application for the order is made in accordance with this Part, and (c) the Supreme Court is satisfied that the offender is any of the following: (i) a convicted NSW terrorist offender, (ii) a convicted NSW underlying terrorism offender, (iii) 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 under the order."
5. It was common ground that paragraphs (a) and (b) were made out. (Because the s 51B offence may be dealt with on indictment, it is a "NSW indictable offence" as defined in s 4 of the Act, while it may be noted that s 6 provides that a person is "serving a sentence of imprisonment" for an offence if, relevantly, the person is on parole in respect of the offence.) It was common ground that the appellant was not a "convicted NSW terrorist offender" or a "convicted NSW underlying terrorism offender".
6. The critical issue was whether, as the State contended and the appellant denied, the appellant was a "convicted NSW terrorism activity offender". That term is defined in s 10 as follows: "10 Convicted NSW terrorism activity offender (1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender's offence) and any of the following apply in respect of the offender: (a) the offender has at any time been subject to a control order, (b) the offender has at any time been a member of a terrorist organisation, (c) the offender: (i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or (ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism. (1A) Without limiting subsection (1) (c): (a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following: (i) making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (ii) 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, (iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and (b) an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following: (i) networking or communicating with the person, group of persons or organisation, (ii) using social media sites or any other websites to communicate with the person, group of persons or organisation. (2) Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere). (3) In this section: terrorist organisation has the same meaning as it has in Division 102 of Part 5.3 of the Commonwealth Criminal Code." [Emphasis added]
7. It was common ground that the appellant was an eligible offender, and that neither paragraph (a) nor (b) of sub-s (1) was satisfied. By the conclusion of the preliminary hearing, the State's case was confined to s 10(1)(c)(i) read with s 10(1A)(a)(ii).
8. The appellant described, not inaptly, the effect of s 10(1A)(a)(ii) as a deeming provision. Its effect is twofold. 1. First, it confirms or expands the notion of making any statement advocating support in s 10(1)(c)(i) so that it includes the use or display of "images or symbols". 2. Secondly, it makes it sufficient to use or display images or symbols which are associated with a person, group or organisation or ideology which supports terrorist acts or violent extremism, even if the images or symbols used or displayed do not themselves support terrorist acts or violent extremism.
9. The use or display of images on which the State relied to engage s 10(1A)(a)(ii) was a single Facebook posting, on an account styled "Ahsan Cheema" and which the primary judge found was controlled by the appellant.
10. The posting was made on 5 February 2020. It was publicly viewable (there was evidence that this meant it could be viewed by users and non-users of Facebook). It is a picture of what appears to be a short Arabic word or words, to which is affixed a microphone, and which has been somewhat cropped at top and bottom. Underneath the image are the words: "'Heed the call' - New Nasheed from Islamic State's Ajnad Media 'Heed the call' (Arabic: labbu al-nida') is the latest production from the Islami..."
11. The evidence disclosed that the post was a link to a "blog" posted by Aymenn Jawad Al-Tamimi almost 3 years earlier, on 4 May 2017. The entirety of the blog post was in evidence. The first sentence was: "'Heed the call' (Arabic: labbu al-nida') is the latest production from the Islamic State's Ajnad Media, which puts out Arabic nasheeds and recitations of parts of the Qur'an."
12. The post made some observations about what could be inferred about the Islamic State from the themes in the nasheed. It included a translation of the nasheed, and an image which is the uncropped version of what appeared on the appellant's Facebook post. It will also be seen that the text reproduced under the image on the appellant's Facebook post was the title of the blog post and part of its first sentence.
13. There was evidence that Facebook users could post a link to another website by entering the text of that website's Uniform Resource Locator (URL) within a post, creating a hyperlink to the other website. There was also evidence that when posting a link to another webpage, "Facebook often automatically publishes an image or part of an image to accompany the post, being any one image or part of an image which itself is displayed on the other webpage".
14. The evidence disclosed other posts made on the same account which, according to the State, raised concerns about the appellant's interest in and identification with violent extremism. Those posts need not be summarised for present purposes, because they were not relied on in order to satisfy s 10(1)(c)(i) read with s 10(1A)(a)(ii).

Procedural background

1. The State applied by summons filed on 26 May 2020. The interim hearing took place before the primary judge on 11 and 12 June 2020, consistently with the requirement in s 24(4) that it occur within 28 days after the application was filed. The primary judge made orders on 15 June 2020, in circumstances when the appellant's sentence was to expire on 17 June 2020. His Honour published reasons of 239 paragraphs for those orders on 9 July 2020: State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876.
2. The issues at the hearing were more numerous than in this Court, including an application for a permanent stay, which the primary judge refused and from which refusal no appeal has been brought. There is no need for the purposes of this appeal to summarise many aspects of his Honour's reasoning. The most efficient course will be to summarise the portions of the reasons of the primary judge relevant to each ground at the same time as addressing the submissions advanced in support of that ground.
3. It is necessary for the appellant to identify some legal, factual or discretionary error: State of New South Wales v Naaman (No 2) [2018] NSWCA 328; 276 A Crim R 30 at [6] and [9]. The amended notice of appeal raised four grounds. It will be convenient to follow the order those grounds were addressed in oral submissions.

First ground of appeal

1. The appellant submitted that there was no evidence to support the finding that the image posted on his Facebook page was an image associated with Islamic State. Such a finding is sufficient to engage s 10(1A)(a)(ii), and therefore to render the appellant a "convicted NSW terrorism activity offender".
2. It was common ground that the evidence did not disclose (a) whether the image made sense as one or more words in Arabic and (b) if so, what their meaning was.
3. The State tendered the report of Professor Greg Barton, who was well qualified to express opinions on Islam, Islamic movements and international politics, and whose report was not relevantly challenged or controverted. (While some portions of his report were the subject of objections, none of the matters referred to below was objected to.)
4. Professor Barton gave evidence that "nasheed" had as its literal meaning a "chant" and referred to "Arabic poetry, often with romantic martial themes about brothers-in-arms, generally sung acapella style in stirring harmonies but sometimes accompanied by percussion". He said that the musical form was centuries old, but had become popular in recent decades with nasheed videos and audio tracks on social media. He said that while nasheeds are quintessentially Islamic, their content is not necessarily religious, although many popular modern nasheeds are religious.
5. Professor Barton was briefed with a number of nasheeds which the appellant had posted on his Facebook page and said of them that all had religious content which appealed to extremists, but not all were exclusively or distinctively extremist in nature. He said "[s]tirring references to 'the armies of God' are not necessarily indicative of support for violent extremism, any more than Christian hymns with similarly martial elements suggest literal interpretation".
6. Professor Barton gave two opinions expressly directed to the particular "heed the call" posting on 5 February 2020. He said of it: "Nevertheless, there is some content that has a clear link with violent extremism. The Nashid 'Heed the call' is a Nasheed with links to IS, as is seen by the fact that it [was] release[d] [by] the IS media channel Ajnad Media. … 'Heed the call' here refers explicitly to heeding the call of jihad (in the sense of violent, offensive, action, such as that undertaken by IS in Syria and Iraq[)]."
7. The primary judge referred to this evidence, and made findings in relation to it at [125]-[129]: "The Plaintiff submitted that the Defendant falls within s 10(1)(c)(i) taken with s 10(1A)(ii) by reference, in particular, to evidence concerning the Defendant's posting of a link on Facebook in February 2020 to the Islamic State Nasheed "Heed the call" which is said to be a public display of an image or symbol associated with a group of persons, ideology or organisation (Islamic State) that support terrorism or violent extremism. Islamic State is currently listed as a prescribed terrorist organisation: Criminal Code (Terrorist Organisation - Islamic State) Regulations 2017 (Cth). The evidence demonstrates that the Defendant posted the link in February 2020. Reference by the Defendant to an Islamic State Nasheed is significant and probative concerning the s 10(1)(c)(i) aspect of the application. In considering the "Heed the call" posting by the Defendant, it is appropriate to keep in mind that there is nothing in the evidence that points to the Defendant exercising a journalistic function nor, as was accepted by senior counsel for the Defendant, was there any suggestion in the evidence that the Defendant, at relevant times, had an academic interest and was undertaking studies into Islam or radical Islam (T28, 11 June 2020). This bears upon the Defendant's motive for posting the "Heed the call" item on his Facebook page. Professor Barton examined the "Heed the call" posting on Facebook. He stated that the Nasheed "Heed the call" is a Nasheed with links to Islamic State as seen by the fact it was released by Ajnad Media, the Islamic State media channel (Barton report, paragraph 12.4). Later, Professor Barton stated that "Heed the call" refers explicitly to heeding the call of jihad, in the sense of violent, offensive action such as that undertaken by Islamic State in Syria and Iraq (Barton report, paragraph 15.2). I am satisfied that the Defendant posted the words and image which make up the "Heed the call" posting in February 2020. I am satisfied that the Defendant, by the words and image used, has displayed an image or symbol associated with Islamic State, an organisation that supports terrorist acts and violent extremism: s 10(1A)(a)(ii) THRO Act. In this way, the Defendant has made a statement advocating support for a terrorist act or violent extremism: s 10(1)(c)(i) THRO Act."
8. The appellant's submission was that Professor Barton's report said nothing about the cropped picture in the appellant's Facebook post. It was elaborated orally as follows, by reference to Professor Barton's opinions on the appellant's Facebook post: "ROBINSON: The no evidence point is it's not a comment on the image. My client was found to have displayed images or symbols associated with Islamic State at para 129 of the judgment. There's no evidence for that finding. BATHURST CJ: You say, in effect, to undertake the exercise required, you ignore everything under the image itself? ROBINSON: Yes. BATHURST CJ: And Professor Barton's evidence is entirely irrelevant in those circumstances? ROBINSON: Yes. BATHURST CJ: So even though anyone who subscribed would know that it was [a] reference to a terrorist organisation, for the purpose of dealing with this Act, you've just got to ignore that fact? ROBINSON: What was relied on here by the State is an image that complied with (1A)(a) of s 10, and that's what was relied on, and that's what his Honour was testing, and that's what his Honour determined, but his Honour did so without any evidence about what that image means. Not the milieu in which the image was sitting, not the Facebook position which it was placed, not the article to which it was attached, but what did the image mean. And his Honour made a formal finding that he displayed an image associated with Islamic State without evidence."
9. There are two aspects to Mr Robinson's submission.
10. The first is that "images or symbols" in s 10(1A)(a)(ii) excluded alpha-numeric images or symbols, so that the provision only applies to the picture on the Facebook post, and not to the text immediately underneath, which also forms part of the same Facebook post. That cannot be right. For one thing, it seems highly likely (despite the absence of any evidence) that the "image or symbol" which Mr Robinson accepted was such is one or more Arabic words, athough it was accepted at all times that it was an "image or symbol". It would be remarkable if the image in the appellant's Facebook post, which is a cropped copy of what is found in Aymenn Jawad Al-Tamimi's blog, did not convey some meaning to at least some viewers.
11. The meaning of "using or displaying images or symbols" in s 10(1A)(a)(ii) is a question of law, but there is no reason to exclude from its scope letters or numbers which are associated with an organisation as opposed to pictures associated with an organisation. "Verdi" was (by reason of being an acronym) associated with Italian nationalism in the 19th century, while to some viewers, the number 88 is associated with certain beliefs as clearly as an image of a swastika. The significance of numbers 969 and 786 in contemporary Myanmar is another example: see M Walton and S Hayward, "Contesting Buddhist Narratives: Democratization, Nationalism and Communal Violence in Myanmar" (2014) 71 Policy Studies. The proposition that a word or a number can never be an image or a symbol within the meaning of s 10(1A)(a)(ii) cannot be accepted.
12. Secondly, Mr Robinson said that the question fell to be determined by the image considered in isolation, such that whether or not the image was associated with Islamic State fell to be determined by the image alone ("It must be associated with, there must be something grounded in the image to associate it with a terrorist organisation"). The consequence of this submission was that the caption immediately below the image had to be disregarded. While s 10(1A)(a)(ii) requires the image or symbol to have an association with the person, group, organisation or ideology, there is no reason to require that association to be discernible from the image or symbol in isolation. As the examples mentioned above illustrate, some symbols may be powerfully associated with organisations or ideologies and yet that may not be obvious on their face, at least to many viewers. Contrary to the appellant's submission, the question posed by s 10(1A) falls to be assessed by the evaluation of all of the evidence that bears on the material posted by the appellant. That includes the fact that his own post stated that the nasheed was the latest production from the Islamic State's Ajnad Media.
13. The ground was framed solely as a finding based on no evidence. The evidence of Professor Barton, and the evidence of the caption underneath the image on the appellant's Facebook post, each supported the conclusion that the appellant had used or displayed an image or symbol associated with the Islamic State. This ground is not made out.

Ground 4 - applying the wrong test

1. This ground complained that the primary judge had failed to apply the heightened standard imposed by the Act when making the orders for psychiatric and psychological examination, and the interim supervision order.
2. This ground was founded upon [186] and [188] of his Honour's reasons, which were as follows: "I am satisfied that the evidence demonstrates, to the necessary standard at the preliminary hearing, the matters alleged in the supporting documentation would, if proved, justify the making of an ESO so that an order for psychiatric and psychological examination is appropriate (s 24(5)) together with an ISO (s 27(b) THRO Act). … The enactment of s 10(1A) THRO Act in 2018 may be seen as a further extension by the legislature undertaken with the express intention to protect the community (see [86] above). The concepts contained in s 10(1) and (1A) are to be adopted and applied in the risk assessment process to be undertaken under the THRO Act, with the primary object of providing supervision of persons who pose an unacceptable risk of committing a serious terrorism offence so as to ensure the safety and protection of the community: s 3(1) THRO Act."
3. Mr Robinson directed his submissions to the absence of any reference in the dispositive part of his Honour's reasons to being satisfied "to a high degree of probability" that the appellant posed an unacceptable risk. Mr Robinson acknowledged that the primary judge had accurately summarised the applicable test at [100]-[101]: "The Court looks at the allegations and documentation "through the lens of the plaintiff's case" and takes them "at their highest when deciding whether the test articulated in section 27(b) THRO Act has been made good in all the circumstances of the case": State of NSW v Naaman (No 2) [2018] NSWSC 1329; State of NSW v Elzamtur [2019] NSWSC 186 at [4]. In undertaking the assessment at the preliminary hearing, the Court is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation: State of NSW v Sturgeon at [6]."
4. Earlier in his reasons the primary judge had reproduced the applicable principles, including at [75]-[76] and [88]: "75 At the conclusion of the preliminary hearing, the Court must make orders under s 24(5) THRO Act for psychiatric and/or psychological examination of the Defendant if it is satisfied that the matters alleged in the supporting documentation (under s 23(3) THRO Act) would, if proved, justify the making of an ESO. 76 This directs attention to the test for making an ESO in s 20(d) THRO Act, namely that the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing a "serious terrorism offence" if not kept under supervision under the order. The Court is not required to determine that the risk of a person committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence: s 21 THRO Act. 88 In the context of the present case, the following matters must be established by the Plaintiff at the preliminary hearing to obtain orders for psychiatric and/or psychological examination of the Defendant together with the imposition of an ISO: (a) the Court must be satisfied that the Defendant is an "eligible offender"; (b) the Court must be satisfied, in the circumstances of the case, that the Defendant is a "convicted NSW terrorism activity offender": s 10; s 20(c)(iii); (c) to order an ISO, it must appear to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO: s 27(b); (d) to order psychiatric and psychological examination of the Defendant, the Court must be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, namely that the Court is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order: ss 20(d), 24(5) THRO Act; (e) if an ISO is ordered, what conditions are appropriate for inclusion in the ISO: s 29 THRO Act."
5. True it is that at [98], his Honour observed that a "lower standard applies at a preliminary hearing", consistently with the need to take the allegations in the State's case at their highest. This proposition, immediately preceding his Honour's statement about taking the State's case at its highest and disregarding conflicts and inconsistencies is to be understood as a reference to the different approach to dealing with the evidence. Contrary to the appellant's submissions, it does not disclose error.
6. The primary judge said that he was applying those principles in terms, at [185], immediately before the dispositive part of his reasons: "I have applied the principles summarised earlier in this judgment (at [91]-[103])."
7. Mr Robinson said this did not reflect how the primary judge actually reasoned. The high point of this submission was that the primary judge failed to refer to the high degree of probability in the dispositive section of his reasons, save by reference at [185].
8. There is no reason to doubt that when a judge reproduces the principles and says that he has applied them that is in fact what occurred. As was said in Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [130], "because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result".
9. Further, the reasons are to be read as a whole. The analysis of whether the State had demonstrated that orders for examination and for an interim supervisory order should be made occupies [159]-[192] of his Honour's reasons. In those paragraphs, his Honour referred to the need to consider the totality of the evidence, bearing in mind that this was not a case like some which turned on statements made in the distant past (although some were). The evidence on which the primary judge relied included: 1. In 2004 the appellant was aggressive and abusive towards police, saying, "I'm going to join al-Qaeda so I can bomb all you cops". The primary judge noted that this was "well removed in time" from his activities in 2019 and 2020, but was "capable of shedding light upon the Defendant's thought processes and a willingness to identify with an extremist cause at that time". 2. In 2017, when taken to hospital for possible scheduling, the appellant was described by a police officer as threatening to harm police and "referencing Curtis Chang [sic] saying he will kill police". The primary judge noted that allowance should be made for the appellant's apparent mental health issues at that time. 3. In December 2018, the appellant made a post defending the reputation of Ahmed Elomar, the brother of Mohamed Elomar, on Facebook against a suggestion that he was also a terrorist, saying: "…wjats ur definiton of terrirost do u call australian or american jeta. dropping bombs from jets in. populated areas killing familiea women children are they terrirists [sic]". 1. In 2018, the appellant's Facebook page included as a featured photograph an image of the Shahada (the Islamic statement of faith) with crossed assault rifles, which Professor Barton had identified as reflecting jihadi iconography.
10. The primary judge also had regard to expert evidence which identified the following risk factors based on the appellant's history: "The most significant risk indicators would appear to be his increasing interest and potential commitment to an ideology that justifies violence; an increasing sense of vicarious group grievances in response to perceived injustice to Muslim people by Western governments such as America and Australia; some hostility to his national identity as an Australia[n]; a lack of empathy for those who are outside his own group; personal contact with those associated with violent extremism; a susceptibility to influence, control or indoctrination; a violent criminal history indicating a capacity for violence; and a strong motivation for camaraderie and group belonging."
11. The primary judge regarded the report as "careful and balanced". It expressed the qualified conclusion that the appellant "may be at a substantially elevated risk of engaging in acts of violent extremism".
12. Read as a whole, there is no reason to conclude that the primary judge did not do what his Honour said he did, and apply the heightened standard required under the Act, on the basis of the State's case taken at its highest.
13. This ground is not made out.

Ground 2 - failure to respond to clearly articulated arguments

1. As amended, this ground had two limbs. The first was that clearly articulated submissions had been made at first instance which were not expressly determined in the reasons for judgment. The second was that a matter had been determined which had not been argued, and without giving the appellant an opportunity to respond.
2. In substance, however, the clearly articulated arguments were those substantive matters sought to be argued on appeal. Mr Robinson, with respect correctly, accepted that nothing turned on this ground. The submissions which were not attended to at first instance were either right or wrong. If they were right, the appeal would be allowed; if they were wrong, it would be dismissed. Further, the right of appeal gave the appellant ample opportunity to respond to the dispositive reasoning of the primary judge. It was not suggested that the appellant would have adduced evidence. This ground, while it might have been appropriate in an appeal confined to questions of law, or an application for judicial review for jurisdictional error, does not advance the position. It rises or falls with the other grounds of appeal.
3. For those reasons, this ground does not provide a separate basis to attack the orders made at first instance.

Ground 3 - Proper construction of s 10(1)(c)(i) and s 10(1A)(a)(ii)

1. This ground, as advanced on appeal, commenced with the proper construction of s 10(1)(c)(i) and 10(1A)(a)(ii). If on its proper construction the Facebook post fell within the statute, then the appellant relied on constitutional considerations to read it down.

Three aspects of construction

1. Three submissions on construction were encapsulated as follows: "[O]n the 'Heed the call' post [the primary judge] failed to ask whether the post could properly be described as a statement advocating support for violent extremism, and whether the image in that post constituted such a statement. The circumstances where Mr Cheema did not have an academic interest in Islam was not relevant to the question of whether a link to a blog criticising [Islamic] State's activities was a statement advocating support for violent extremism. We also submit that the Court was wrong in construing s 10(1A)(a)(ii) of the Act applying to a use or display of images or symbols not intended to be harmful to the wider community. ... Thirdly, his Honour misconstrued s 10(1A)(a)(ii) by failing to construe the words 'using or displaying symbols or images' as referring only to a use or display which could be reasonably construed to be advocating support for any terrorist act or violent extremism."
2. Each may be addressed in turn.
3. The first submission turned upon one passage in the reasons of the primary judge which referred to the appellant's motivation. This occurred at [127]: "In considering the 'Heed the call' posting by the Defendant, it is appropriate to keep in mind that there is nothing in the evidence that points to the Defendant exercising a journalistic function nor, as was accepted by senior counsel for the Defendant, was there any suggestion in the evidence that the Defendant, at relevant times, had an academic interest and was undertaking studies into Islam or radical Islam (T28, 11 June 2020). This bears upon the Defendant's motive for posting the "Heed the call" item on his Facebook page."
4. The appellant said that the test posed by s 10 did not turn on motive, and that the reference to it in [127] was an irrelevant consideration. However, as described in response to ground 1 above, the primary judge's findings concerning whether the appellant was a "convicted NSW terrorism activity offender" did not turn on motive. His Honour returned to the evidence of the appellant's motivations in his analysis of whether he posed an unacceptable risk, and that was, with respect, perfectly appropriate.
5. Secondly, and seemingly in the alternative to the first point, the appellant submitted that s 10(1A)(a)(ii) was to be read narrowly so that it was confined to using or displaying images or symbols which were intended to be harmful to the wider community. This was not developed in oral submissions. There is nothing in the text, or context, or purpose of the provision to commend such a construction.
6. Thirdly, the appellant contended that s 10(1A)(a)(ii) should be confined to images and symbols which could reasonably be construed as advocating support for a terrorist act. It was said that posting a link to an article dispassionately considering Islamic State's activities could not reasonably be construed as advocating support for terrorism or violent extremism, even if the post contained a flag associated with Islamic State.
7. However, the appellant's construction of the deeming provision means that the words "associated with a person, group of persons or organisation, or an ideology" in the sub-paragraph perform little or no work. The point of the deeming provision is that the definition of "convicted NSW terrorism activity offender" will extend not merely to people who use or display images which directly advocate support for a terrorist act or violent extremism, but who use or display images which are associated with, inter alia, a terrorist organisation.
8. It may be that s 10(1A)(a)(ii) is not as wide as its literal meaning. One could imagine an image associated with an article in the mainstream media reporting on conflict involving Islamic State which contains a small image within it of a flag associated with that terrorist organisation. It is not necessary to express a view as to whether that falls within s 10(1A)(a)(ii). It is far removed from the present case. The image posted by the appellant was (according to the evidence) released by Islamic State, and the posting said expressly that the nasheed was the "latest production from the Islamic State's Ajnad Media". There was nothing incidental or accidental about the connection between the image and Islamic State.
9. The essence of the deeming 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, rather than being necessary to advocate support for terrorist acts or violent extremism directly. It is also to be borne in mind that s 10(1A) was added separately to the section, with the intent of clarifying the circumstances in which a person would be found to have been "advocating support for any terrorist act or violent extremism".

The implied constitutional limitation

1. The second aspect of this ground attacked the reasoning of the primary judge based upon the constitutionally implied limitation on legislative power. The arguments proceeded, at first instance and on appeal, on the basis that the limitation upon power was applicable and to be assessed by reference to the "structured proportionality analysis" articulated in McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 at [2], Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 at [159], [280] and [473] and Clubb v Edwards; Preston v Avery [2019] HCA 11; 93 ALJR 448 at [70]-[74] and [266]. There is no occasion in this judgment to pause to query any element of that common ground.
2. The primary judge expressed his conclusions at [153]-[155]: "On its proper construction, I am not persuaded that s 10(1A)(a)(ii) THRO Act burdens implied freedom. The answer to the first question (at [141])] in the test is "no", rendering it unnecessary to consider and determine the second and third questions. If I was wrong in that conclusion and it was necessary to move to the question of compatibility, I would be satisfied that the purpose of s 10(1A)(a)(ii) THRO Act is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. This conclusion is supported by statements made by the Attorney General in his 2018 second reading speech (see [86] above). The risk assessment process under the THRO Act, of which s 10(1A)(a)(ii) forms part, is a legitimate end in legislation designed to protect the community. Accordingly, I would conclude (in answer to the second question at [[141(2)])] that any burden was necessary. If the third question of proportionality arose (at [141(3)])], I would be satisfied that s 10(1A)(a)(ii) THRO Act is reasonably appropriate and adapted to advance a legitimate object."
3. The primary judge indicated at the outset that his reasoning would be succinct, having regard to the urgency with which his determination was required. He stated that his approach "reflects the temporary and provisional nature of what is said at this point on the constitutional issue" and that his Honour was "aware that the issue may be revisited at any final hearing": at [137] and [138].
4. The appellant was critical of this, which was styled as a failure to provide appropriately complete reasons. The criticism is without foundation. The natural reading of his Honour's language was, favourably to the appellant, to diminish the ordinary deference that would be paid at the final hearing to the reasons following the preliminary hearing, assuming the constitutional issue was reagitated.
5. Turning to the substance of the submission, it was common ground that in one respect, the primary judge had misapprehended the State's submission on burden. His Honour proceeded on the basis that a slight and indirect burden was not enough to satisfy the first limb of the test. The State accepted that that was erroneous, although it did not concede that any such burden had been made out.
6. Establishing that political communication is burdened by a law such as s 10(1A)(a)(ii) is a separate and necessary part of the analysis: Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128 at [83]. Section 10(1A)(a)(ii) does not of itself restrict political communication. It imposes no legal burden on political communication. Consequently, as Mr Robertson, who advanced this part of the State's submissions on appeal as he had at first instance, submitted, the issue was whether there was a practical effect. There was no evidence that, say, any journalist or news organisation was in any way constricted by s 10(1A)(a)(ii), and one would not readily contemplate that to be the case. Indeed, there was no evidence at all of the effect the provision had on political discourse. (That is not to imply that evidence of burden is necessarily needed or permitted: see Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35 at [105]-[106] and [145] and Brown at [237] and [316].)
7. It is to be borne in mind that the significance of s 10(1A)(a)(ii) is that while it expands the class of persons against whom an application may be made for an extended supervision order or a continuing detention order, such an order may only be made if the person (a) is serving a sentence of imprisonment for an indictable offence (including being on parole) and (b) a court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision or in detention. A person who is neither in prison nor on parole nor under supervision can only be liable to have an application under the Act made against him or her if he or she is subsequently sentenced to a term of imprisonment, and it is problematic, to say the least, to regard s 10(1A)(a)(ii) as burdening that person's political discourse if there is no practical effect until and unless the person is found to have committed a crime and sentenced to a term of imprisonment.
8. True it is that there are large numbers of New South Wales offenders at any one time who have been released on parole. Even so, it may be doubted that there are large numbers who are dissuaded from any form of communication, let alone political communication, by reason of s 10(1A)(a)(ii).
9. Another difficulty in this area is the terminology. It is common ground that identifying a "slight" burden is sufficient to engage the analysis, but what does it mean in a case such as the present to say that the burden is "slight"?
10. The appellant made no detailed submissions upon the burdening of the freedom orally. His written submissions were that the provision burdened the implied freedom "because it provides a disincentive for certain offenders to engage in political communication about terrorism and terrorist organisations". It was submitted: "If the communication used or displayed images or symbols as is common in social media (noting also that, on one view, symbols include words), the State may later rely upon such communication in an application for a supervision or detention order against the offender. The disincentive might apply to a broader class of persons, since an image displayed at any time fulfils the criterion, even if it is displayed before the person becomes an eligible offender."
11. In response to the State's submission that this was "speculative indeed", the appellant submitted that many incarcerated offenders would perceive the threat of being subject to an application under the Act as real, and that even if an order were not made, "being named as a defendant in such a proceeding has practical, emotional and reputational repercussions". The appellant invited the Court to infer that "the prospect of being made a party to such proceedings provides a strong incentive to a particular class of offender not to engage in political discourse about terrorism or violent extremism". It was said that the burden imposed by s 10(1A) was substantial.
12. In a case such as the present, where the case turns on practical effect, it may be doubted whether even a slight burden has been established. It may be accepted that there is a numerous minority of people in New South Wales, numbering in the thousands, who are eligible offenders, or who fear they might in future become eligible offenders. A fraction of that class might realistically fear the prospect of being made a defendant to an application under the Act. It may be accepted that the risk of merely being joined as a defendant to an application under the Act is a powerful disincentive, even if an order is not ultimately made. But what is not shown is that there is any material inhibition, or perceived material inhibition, from political communication by reason of that risk. It is sufficient, in order to engage the analysis required by the freedom, for the burden to be "slight". But it is not shown that any communication by anyone is affected by the chilling effect of s 10(1A). True it is that political communication should not be narrowly confined, as Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 illustrates. But it must also be acknowledged that far from every posting on social media could constitute political communication.
13. In short, the question is whether there is a sufficient burdening on political communication. That requirement is one that is nonetheless real, even if it is elusive. It may be doubted whether it is made out on the facts of this case. To be clear about it, that scepticism will not prevent the appellant, if he is so minded, from advancing evidence or making different submissions at the final hearing seeking to establish a burdening of the implied freedom.
14. However, this appeal should not be decided on the basis that the appellant has failed to establish even a slight burdening of the implied freedom. Let it be assumed that s 10(1A)(a)(ii) imposes a burden on the freedom in its operation or effect. On any view, it can be no more than a "slight" burden. The appellant's submission in his written submissions in reply, unelaborated in oral address, that it is "substantial" as opposed to "slight" is, with respect, unsustainable.
15. The appellant conceded, properly, that the legislation was compatible with the maintenance of the system of representative and responsible government. The question then, on which the parties divided, was whether s 10(1A)(a)(ii) was reasonably appropriate and adapted to advance that legitimate object.
16. It was common ground, on this part of the argument, that the questions of "suitability", "necessity" and "adequacy in its balance" were a useful way of approaching this aspect of the test. Although the appellant made no concession, a suitable approach for determining the class of persons who might fall within the protective purposes of the Act were those who had displayed or used imagery associated with organisations which supported terrorist acts or violent extremism. The legitimate purpose of the statute is to protect the community from unacceptable risks of terrorism offences. One element of achieving that purpose is for the statute to extend to persons who are shown to have used or displayed images associated with organisations that support terrorist acts.
17. The appellant maintained that the provision extended to individuals who posed no greater risk than others in the general community of committing a terrorism offence, and might indeed capture individuals who posed a lower risk than most of the population, as it would apply to a person displaying an image associated with a terrorism organisation in the context of a communication which denounced terrorism, or engaged in an academic context, or in the course of making legal submissions (the appellant's written submissions included a picture of an ISIS flag in order to make the point that that document engaged s 10(1A)(a)(ii)). The appellant said that there were "alternative, reasonably practical means which are capable of achieving [the provision's] purpose and which are less restrictive in their effect upon the freedom"; cf Tajjour at [113]. Those included drafting the law so as to extend only to those communications which could reasonably be construed as advocating support for terrorist acts or violent extremism. Alternatively, the appellant submitted that another reasonably practical alternative would be to include an intentional element in the test.
18. These submissions overlap with those addressed above in response to the first ground of appeal. The submission that only communications which could reasonably be construed as advocating support for terrorist acts or violent extremism engage s 10(1A)(a)(ii) is not without force. However, all symbols and images have meanings which are determined by context, and confining communications to those which could reasonably be construed as advocating support is to invite the questions (a) construed by whom, (b) with what background knowledge and (c) in what context.
19. Many people viewing a renaissance painting in the 21st century will not appreciate the meaning intended to be conveyed by the artist by many of the symbols. History demonstrates that some superficially benign words, images and symbols may have political and indeed revolutionary meanings. Could 19th century Italians proudly singing Verdi arias be reasonably construed as advocating support for Victor Emmanuel as king of a united Italy? Stickers with the numbers "786" and "969" may be meaningless to a tourist in Myanmar, but carry multiple meanings to many inhabitants of that country, even those who may not be familiar with the numerological derivations of those numbers in Islamic and Buddhist traditions (as explained by Walton and Hayward at pp 13-14). An image of Winnie the Pooh has a very different meaning in China than it does in Australia. The same last two digits of the postcode "2088" which make real estate in one Sydney suburb attractive to some Chinese purchasers carry a very different meaning in some far-right groups. There are many symbols and images whose meanings are much more obscure than any of those summarised above, and may be benign to a large majority of viewers, but perfectly plain to a small minority. Such images and symbols change from time to time. To require that an image be reasonably construed as advocating support would not give rise to an effective, clearly articulated test. It is not an obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom.
20. The appellant's alternative proposal, requiring an intentional element, is readily rejected. Rather than assisting the legislative purpose, this would introduce uncertainty and indeed unworkability, if an element were to turn on the subjective intention of the person using or displaying the image or symbol. If instead the appellant's submission is understood to mean the intention as determined objectively, then it is identical or substantially similar to the first alternative.
21. Thirdly, the provision is adequate in its balance. In making the judicial value judgment required by this balancing exercise, it is sufficient to bear in mind the legitimacy of the purpose of the restrictive measure (the protection of the community) and the fact that the burden on political communication is, at most, slight. Further, the effect of the provision upon the implied freedom could not be described as "grossly disproportionate" or as going "far beyond what can reasonably be conceived of as justified in the pursuit of the law's purpose", to use the formulations favoured by Nettle J in Clubb at [266].
22. This ground is not made out.

Amendments 22 December 2020 - [34] - "it was reference" changed to "it was [a] reference" in the quote. [34] - "(1A)(ii) of s 10" changed to "(1A)(a) of s 10" in the quote. [36] - "first is that that "images" changed to "first is that "images". [57] - "academic interest in Islam and was not relevant" changed to "academic interest in Islam was not relevant". [67] - "[141(a)]" changed to "[141])]" in the quote. [67] - "[141(b)]" changed to "[[141(2)])]" in the quote. [67] - "[141(c)]" changed to "[141])]" in the quote. [84] - "Could late nineteenth century Italians" changed to "Could 19th century Italians". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2020