Fogarty v Jakovac

ANNEXURE A Section 104.2(3)(a) of the Schedule to the Criminal Code (Cth) If the Interim Control Order is confirmed, the confirmed control order is to be in force for a period of 12 months from the date on which the Interim Control Order is made.

1. Control 1 (Specified premises) 1.1. You are required to reside, for the duration of this Interim Control Order, only at premises: 1.1.1. nominated by you within 6 hours from the time that this Interim Control Order comes into force; or 1.1.2. any other premises nominated by you and approved in writing by the AFP Superintendent (the specified premises).
2. Control 2 (Prohibited places) 2.1. You are prohibited from being at any of the following areas: 2.1.1. inside, or on the grounds of, the residence of any person with whom, by reason of Control 8, you are prohibited from communicating or associating; 2.1.2. inside, or on the grounds of, any firing range or other place which sells or hires firearms or ammunition, or any military surplus store; and 2.1.3. inside, or on the grounds of, any premises of any person, organisation or entity (not being premises occupied by an Australian police service or members thereof) where firearms or ammunition are kept or stored.
3. Control 3 (Prohibition on leaving Australia) 3.1. You are prohibited from leaving Australia.
4. Control 4 (Prohibition on accessing/possessing documents) 4.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: 4.1.1. accessing or viewing, acquiring, possessing, recording, copying or storing documents (including documents in electronic form) or electronic media, or attempting to do any of those things; or 4.1.2. causing, facilitating, or directing any other person to access, acquire, possess, record, copy or store documents (including documents in electronic form) or electronic media on your behalf, which: a. instruct, counsel the use or making of, or are supportive of the use or making of, or in that context depict or describe:

1. explosives, explosive devices, initiation systems or firing devices;
2. a 'firearm', 'firearm part', or 'ammunition' within the meaning of s 4 of the Firearms Act 1996 (NSW);
3. an 'imitation firearm' within the meaning of s 4D of the Firearms Act;
4. a 'prohibited weapon' within the meaning of s 4 of the Weapons Prohibition Act 1998 (NSW);
5. anti-surveillance or counter surveillance;
6. execution;
7. beheading;
8. suicide attack;
9. bombing;
10. terrorist attack;
11. assassination;
12. torture;
13. genocide; or b. relate to any of the following:
14. propaganda and promotional material for any 'terrorist organisation' (including the National Socialist Order, the Sonnenkrieg Division, and The Base) within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code);
15. activities of, or associated with, any 'terrorist organisation' (including the National Socialist Order, the Sonnenkrieg Division, and The Base) within the meaning of s 102.1(1) of the Criminal Code;
16. propaganda and promotional material for the National Socialist Network; or
17. activities of, or associated with, the National Socialist Network, unless that material is: 4.1.3. published by a 'constituent body' of the Australian Press Council; 4.1.4. published by the Australian Broadcasting Corporation (ABC), Special Broadcasting Service (SBS), the British Broadcasting Corporation (BBC), the Cable News Network (CNN), or the Guardian; 4.1.5. broadcast on Australian free to air television; 4.1.6. broadcast on Australian pay television; 4.1.7. shown in a commercial movie cinema; 4.1.8. broadcast on any commercially available streaming service; or 4.1.9. contained in material that is served on you or your legal representative in relation to any legal proceedings before an Australian court to which you are a party, provided that it is accessed, acquired, possessed or stored by you only for a purpose connected with the conduct of those proceedings and not otherwise (Court material).

5. Control 5 (Prohibition on producing/distributing documents) 5.1. You are prohibited from the following specified activities (including in respect of your work or occupation), namely: 5.1.1. collating, editing, producing or distributing documents (including documents in electronic form), or attempting to do any of those things; 5.1.2. causing or directing any person to collate, edit, produce or distribute documents (including documents in electronic form), depicting, describing or relating to any: 5.1.3. explosives, explosive devices, initiation systems or firing devices; 5.1.4. a 'firearm', 'firearm part', or 'ammunition' within the meaning of s 4 of the Firearms Act; 5.1.5. an 'imitation firearm' within the meaning of s 4D of the Firearms Act 1996 (NSW); 5.1.6. a 'prohibited weapon' within the meaning of s 4 of the Weapons Prohibition Act 1998 (NSW); 5.1.7. anti-surveillance or counter surveillance; 5.1.8. execution; 5.1.9. beheading; 5.1.10. suicide attack; 5.1.11. bombing; 5.1.12. terrorist attack; 5.1.13. assassination; 5.1.14. torture; 5.1.15. genocide; 5.1.16. propaganda and promotional material for a 'terrorist organisation' (including the National Socialist Order, the Sonnenkrieg Division, and The Base) within the meaning of s 102.1(1) of the Criminal Code; 5.1.17. activities of, or associated with, any 'terrorist organisation' (including the National Socialist Order, the Sonnenkrieg Division, and The Base) within the meaning of s 102.1(1) of the Criminal Code; 5.1.18. propaganda and promotional material for the National Socialist Network; or 5.1.19. activities of, or associated with, the National Socialist Network. 5.2. Control 5.1 does not prohibit you from distributing, or directing a person to distribute, Court material for a purpose connected with the conduct of proceedings and not otherwise.
6. Control 6 (Prohibited activities) 6.1. You are prohibited from carrying out the following activities (including in respect of your work or occupation), namely: Unlawful activity or activities that would undermine the purpose of the Control Order 6.1.1. Committing any offence against a law of a State or Territory or the Commonwealth of Australian punishable by a term of imprisonment. 6.1.2. Providing any false information or misleading information or withholding any information about your whereabouts, activities or associations when asked by an AFP Superintendent. Groups 6.1.3. Forming, joining or affiliating with any group, club or organisation, including any Internet-based social networking service, without written permission from an AFP Superintendent. 6.1.4. Knowingly joining or affiliating with the National Socialist Network, or any group, club, or organisation affiliated or otherwise associated with the National Socialist Network. 6.1.5. Forming any corporation, partnership, incorporated association, registering any business names, or operating a business without first notifying an AFP Superintendent in writing. Public appearances 6.1.6. Making any public appearance or statement for publication in any form to any person, or cause any statement to be published by any person on your behalf, in relation to any of the following matters: a. carrying out or permitting violence; b. the activities of any 'terrorist organisation' (including the National Socialist Order, the Sonnenkrieg Division, and The Base) within the meaning of s 102.1(1) of the Criminal Code; c. the ideology of, or any material published, produced or endorsed by any 'terrorist organisation' (including the National Socialist Order, the Sonnenkrieg Division, and The Base) within the meaning of s 102.1(1) of the Criminal Code; d. the activities of the National Socialist Network; e. the ideology of, or any material published, produced or endorsed by the National Socialist Network; f. the use of weapons, firearms, ammunition or explosives.

SUMMARY OF GROUNDS ON WHICH THE ORDER SHOULD BE MADE

Criminal Code (Cth), section 104.2(3)(c)

1. Having regard to the matters set out in the 'Statement of facts relating to why the order should be made' (SOF-For) and the 'Statement of facts relating to why the order should not be made' (SOF-Against), the grounds on which an interim control order should be made are summarised as follows. Offence relating to terrorism
2. On 1 April 2022, Tyler Slavko Jakovac pleaded guilty to and was charged with one count of intentionally advocate the doing of a terrorist act or the commission of a terrorism offence, being reckless as to whether another person will engage in a terrorist act or commit a terrorism offence, contrary to section 80.2C(1) of the Schedule to the Criminal Code Act 1995 (Cth) (the Code).
3. On 25 July 2022, Mr Jakovac was sentenced to 18 months' imprisonment commencing on 9 December 2020 and expiring on 8 June 2022, and a fixed non-parole period of 14 months expiring on 8 February 2022.
4. The offence for which Mr Jakovac was convicted is an 'offence relating to… a terrorist act' for the purposes of section 104.4(1)(c)(iv) of the Code because an offence against section 80.2C(1) of the Code is properly characterised as one 'relating to' a terrorist act. Risk posed by Mr Jakovac
5. Having regard to the matters set out in the SOF-For and SOF-Against, there is a real risk that, following his release from custody and return into the community, Mr Jakovac will be involved in committing, supporting or facilitating a terrorist act in Australia.
6. The risk posed by Mr Jakovac is demonstrated by, and/or arises out of, the following matters. These matters and the consequent risk would be expanded upon in an affidavit of the applicant if an application for an interim control order is made. Ideology and support for ideologically motivated violence
7. From 16 January 2020 to 29 October 2020, Mr Jakovac used the Internet extensively to post and distribute content concerning extreme right-wing ideology (XRW) and ideologically motivated violent extremism (IMVE), as well as to engage with other users regarding extremist ideas. This included posting and distributing content praising Adolf Hitler and Brenton Tarrant (Tarrant), and promoting violence against people of Jewish, Muslim, African, African American and other 'non-white' backgrounds. On at least 20 occasions in this period, Mr Jakovac urged engagement in and/or preparation for terrorist acts, including by promoting the start of a 'race war'.
8. From 29 October 2020 until his arrest on 9 December 2020, Mr Jakovac: 8.1. engaged with an online covert operative (the Operative) on the social media platform 'SnapChat' by encouraging the Operative to join the National Socialist Network, discussing shooting 'political leaders' with the Operative, and sending the Operative racist imagery, a video of Tarrant committing the Christchurch Terror Attacks and images of weapons and military paraphernalia; 8.2. posted to SnapChat an image of himself with his finger in the air with the words, 'I'm actually gonna commit a massive National tragedy' written across the image; 8.3. posted to SnapChat an image of his body with the animated head of Dylan Roof with the words, 'I'm Dylan roof! And I'm coming to your local church!!!' written across the image.
9. Upon his arrest, Mr Jakovac was found to be in possession of nine PDF documents that provided instructions for manufacturing homemade explosives and improvised firearms. In addition, a large amount of military paraphernalia and equipment, including a ballistic plate carrier vest, camouflage pants, gas masks, military epaulettes, a hunting knife and four (4) bullets were seized. Furthermore, a significant amount of digital content on devices owned by Mr Jakovac relating to IMVE was found.
10. It is clear Mr Jakovac was ideologically supportive of XRW up until the time of his arrest, notwithstanding his assertions to the contrary following his arrest. Those assertions are inconsistent with many of the matters outlined above. Mr Jakovac's ideology and behaviour have only been tested outside of a custodial setting for the brief period since his release from custody on 25 July 2022. While there is reason for some optimism regarding Mr Jakovac's reintegration into society, those reasons do not exclude the existence of the risks referred to above. Negative attitudes towards law enforcement
11. Initially, when Mr Jakovac was arrested and first held in custody, he expressed remorse and shame over his offending and often apologised to investigating Police Officers. He told them he was happy he was caught and able to finally talk to people about it.
12. Over time, Mr Jakovac developed a view that AFP and ASIO were corrupt and his arrest was part of a plan by those agencies to benefit from imprisonment of individuals like him. He expressed his view that it was unfair that he had been arrested and that a warning would have been sufficient for what he had been doing. Susceptibility to influence
13. There is evidence to suggest that Mr Jakovac may be particularly susceptible to malevolent influences: a. Mr Jakovac has indicated that his IMVE Telegram chats gave him a sense of belonging and camaraderie. b. Corrective Services New South Wales (CSNSW) identified Mr Jakovac as being 'extremely vulnerable' due to his young age and his history of self-harm, suicidal ideation, being bullied in school and mental health diagnoses. Furthermore, Mr Jakovac was assessed by a forensic psychologist, who concluded that his offending was underpinned by a search for, among other things, 'group belonging'. The forensic psychologist identified Mr Jakovac as having a need for belonging, poor social judgment, grievance and social alienation, obsessive interest, combined with fantasies of strength and unexpressed anger. c. Prior to Mr Jakovac's arrest, at least one person holding XRW views, purportedly a member of the NSN, has contacted Mr Jakovac online and sought to meet with him in person for the purpose of recruiting him to the NSN. d. A number of persons who hold XRW views have attempted to contact Mr Jakovac and his family whilst he has been in custody to offer their support.
14. Mr Jakovac's demonstrated susceptibility to malevolent influences is, in the absence of compelling evidence to the contrary, an ongoing risk factor. Use of social media and capacity to influence others
15. As noted above, Mr Jakovac has used social media to create, distribute and access material relating to IMVE. His offending directly arises from his access to and use of social media.
16. Furthermore, there is evidence of a person holding XRW views using the fact of Jakovac's arrest and subsequent release from custody in online XRW propaganda. Proportionality of 'controls'
17. The obligations, prohibitions and restrictions imposed by the interim control order are reasonably necessary, and reasonably appropriate and adapted, for the purpose of preventing the committing, supporting or facilitating of a terrorist act in domestically or abroad. The controls will ensure that Mr Jakovac: a. is provided with an opportunity to engage positively with the community (through employment, counselling and education); b. is capable of being monitored by police during his reengagement with the community; and c. is prohibited from engaging in those behaviours, being exposed to associates and influences, which may lead him to commit, provide support for or facilitate a terrorist act; and thereby reduce the risks outlined above.

BROMWICH J: 1 This is an application by Detective Superintendent Peter Fogarty of the Australian Federal Police (AFP), for an interim control order (ICO) over the respondent, Mr Tyler Slavko Jakovac, pursuant to s 104.4(1) of the Criminal Code (Cth). 2 The application proceeds with the necessary consent of the Commonwealth Attorney-General, in his capacity as the Minister administering the Australian Federal Police Act 1979 (Cth) (AFP Minister): s 104.2, Criminal Code. It is supported by a detailed and lengthy affidavit from Detective Superintendent Fogarty, who was not the subject of any cross-examination. 3 Following a police investigation into online activities by Mr Jakovac, on 9 December 2020 he was arrested and charged in relation to his conduct on the internet, especially on the online encrypted messaging platform, Telegram, in advocating extreme right wing ideology, especially of a disturbingly racist nature, and thereby the commission of terrorist acts or offences. His extensive online communications between January and December 2020 included numerous instances of applauding well-known racist mass murders overseas, especially in the United States and New Zealand, and suggesting that more of the same should occur. At that time of his arrest he was 18 years of age, just shy of his 19th birthday. He is now almost 21. 4 Mr Jakovac remained in custody, bail refused until the day of his ultimate sentence in the District Court of New South Wales. On 4 March 2022, he pleaded guilty in the Local Court of New South Wales to an offence under s 80.2C(1) of the Criminal Code of, between 16 January and 9 December 2020, intentionally advocating the doing of a terrorist act or the commission of a terrorist offence, being reckless as to whether another person would engage in a terrorist act or commit a terrorism offence referred to in s 80.2C(2). The maximum penalty for that offence is 5 years imprisonment. It is a terrorism-related offence, but at the lower end of the spectrum for such offences. The concern addressed by the offence is one of encouraging others to commit much more serious offences that do entail terrorism. 5 Mr Jakovac was committed for sentence to the District Court, where he adhered to his guilty plea. His sentence hearing was conducted over two days on 4 and 5 July 2022, before Judge Buscombe. He did not give evidence, which is unremarkable, except that he did not give evidence at this application hearing either. On 25 July 2022, Judge Buscombe convicted Mr Jakovac and sentenced him to an 18 month term of imprisonment, commencing on 9 December 2020 and expiring on 8 June 2022, with a non-parole period expiring on 8 February 2022. He had therefore already served not only his non-parole period, but also his head sentence by the time each was imposed. He was therefore released on the day of his sentence, without any parole conditions. 6 In his remarks on sentence, Judge Buscombe observed that while Mr Jakovac had told a forensic psychologist that he no longer adheres to racist views and that the events of 2020 had dismantled his previously idealised view of Russia and Ukraine as some form of utopia, as he had not given evidence, those assertions had not been tested. That remains the position. This is of considerable importance when it comes to considering whether there remains a risk of offences of the same kind or nature being committed again, or such conduct being engaged in, such as to justify the imposition of protective measures by way of interim control orders of the kind sought by Detective Superintendent Fogarty.

The legislative regime for control orders 7 Chapter 5 of the Criminal Code deals with the security of the Commonwealth. Part 5.3 within Chapter 5 deals with terrorism. Division 104 of Pt 5.3 deals with control orders. Section 104.1 succinctly states the objects of Div 104: 104.1 Objects of this Division The objects of this Division are to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for one or more of the following purposes: (a) protecting the public from a terrorist act; (b) preventing the provision of support for or the facilitation of a terrorist act; (c) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. 8 Those objects are a central feature of the control order regime, being replicated in s 104.4(1)(d) of the Criminal Code as being the purposes for which an ICO may be made and confirmed. The Court must be satisfied on the balance of probabilities that each of the obligations, prohibitions, and restrictions to be imposed by the order, referred to as controls, is reasonably necessary, and reasonably appropriate and adapted, for one or more such purpose. 9 There is a two stage process of a senior officer of the AFP first seeking and obtaining an ICO with the necessary consent of the AFP Minister (which may also be done on an urgent basis without first obtaining consent, and which may also be varied); and secondly that officer electing to have that order confirmed for up to 12 months: see Subdivisions B, C, CA and D of Division 104 of the Criminal Code. 10 There are four preconditions for the making of an ICO pursuant to s 104.4(1) of the Criminal Code as set out in paragraphs (a) to (d). 11 The first precondition in s 104.4(1)(a) is that a "senior AFP member", as defined in s 100.1, has requested an ICO in accordance with s 104.3. Detective Superintendent Fogarty is such an officer, being an AFP officer of or above the rank of Superintendent, and has requested an ICO in accordance with s 104.3(a) by way of an originating application and the supporting affidavit sworn by him already referred to above. 12 Detective Superintendent Fogarty's affidavit also seeks to establish that each of the remaining preconditions in s 104.3 have been satisfied. That state of satisfaction is subject to the question of each individual control sought being shown to be reasonably necessary, and reasonably appropriate and adapted for any of the purposes set out in s 104.4(1)(d) of the Criminal Code. 13 The second precondition in s 104.4(1)(b) is that this Court has received and considered such further information (if any) as it requires. No such information has been required, such that this precondition is not operative. 14 The third precondition in s 104.4(1)(c) is that the Court be satisfied, on the balance of probabilities, that any one or more of the conditions in subparagraphs (i) to (vii) have been established, each of which pertain to terrorism issues. Detective Superintendent Fogarty relies upon s 104.4(1)(c)(iv), namely that Mr Jakovac has been convicted in Australia of an offence relating to terrorism. It is common ground that the offence he committed under s 80.2C(1) is an offence relating to terrorism. 15 The fourth precondition in s 104.4(1)(d) is that: the court 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: (i) protecting the public from a terrorist act; or (ii) preventing the provision of support for or the facilitation of a terrorist act; or (iii) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. 16 Detective Superintendent Fogarty relies upon s 104.4(1)(d)(ii) and (iii). There is no concern expressed that Mr Jakovac will himself engage in any act of terrorism, but rather that he will in some way and to some degree resume online activities that will support or facilitate a terrorist act or hostile activity in a foreign country. 17 Section 104.4(2) relevantly provides that for the purposes of s 104.4(1)(d), the Court must take into account as a paramount consideration the objects of Div 104 reproduced at [7] above. Section 104.4(2) also relevantly provides as an additional consideration, but not a paramount consideration, the impact of the control order obligations, prohibitions or restrictions on the person's circumstances, including financial and personal. Those circumstances are to be gleaned, to the extent possible, from Detective Superintendent Fogarty's affidavit, as Mr Jakovac did not give or adduce any evidence. 18 Section 104.4(1)(d)(i) was considered in Thomas v Mowbray [2007] HCA 33; 233 CLR 307. As is apparent from the reproduction of s 104.4(1)(d) above, subparagraph (i) is directed to the purpose of protecting the public from a terrorist act. However, the observations of the High Court apply equally to subparagraphs (ii) and (iii) directed to preventing the provision of support to, or facilitation of, a terrorist act, or engagement in hostile activities overseas. Gleeson CJ at [19] explained the exercise involved in s 104.4(1)(d) as one involving proportionality: The requirement that a Court consider whether each of the obligations imposed by a control order is both reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public was the subject of debate. A requirement of that kind would sometimes be described as a requirement of proportionality. Judgments about proportionality often require courts to evaluate considerations that are at least as imprecise as those involved in formulating a control order. 19 Also in Thomas v Mowbray, Gummow and Crennan JJ at [99] considered that the pre-condition in s 104.4(1)(d) involved a balancing exercise: Section 104.4(1) requires in para (d) that each of these be measured against what is "reasonably necessary" and also against what is "reasonably appropriate and adapted" for attainment of the purpose of public protection from a terrorist act. This is weighed with the impact upon the circumstances of the person in question as a "balancing exercise" (s 104.4(2)). 20 When it comes to assessing the risk for which a proposed set of controls are designed to address, Gleeson CJ in Thomas v Mowbray observed at [9] that the "level of risk of the occurrence of a terrorist act, and the level of danger to the public from an apprehended terrorist act, will vary according to international or local circumstances". Similarly, Gummow and Crennan JJ observed at [92], by reference to consideration earlier in their Honours' reasons of terrorist activities such as the attack on the World Trade Centre on 11 September 2001, that judges exercising the jurisdiction conferred by the provisions outlined above will bring to bear both matters of common knowledge and the facts and circumstances disclosed by the evidence adduced in support of an application for a control order, both at the interim stage and at the confirmation stage. Those observations have contextual application to preventing the provision of support to, or facilitation of, a terrorist act, or engagement in hostile activities overseas. 21 Detective Superintendent Fogarty submits that what has happened in the past is the most reliable guide to what will happen in the future, citing Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, where Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed in relation to the 1951 Geneva Convention Relating to the Status of Refugees' predictive concept of a well-founded fear of persecution: (a) at 574: 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. (b) at 575: 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. 22 The same reasoning necessarily also applies to the two risks sought to be mitigated by control orders in this case, namely the level of risk of the provision of support for or the facilitation of a terrorist act or of the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. 23 In a case such as this, there is little in the way of fact finding required as to past events involving Mr Jakovac. The evidence, especially of agreed facts tendered in the criminal proceedings brought against him, and in the sentencing court's fact finding, delivers quite a high degree of certainty as to what has previously taken place by and in relation to him. It is the application of those past proven events, in the context of the rest of the evidence and applicable general knowledge and experience, that informs the Court's evaluative assessment of the risks that he poses and whether each proposed control, considered in the context of the other controls, is reasonably necessary, and reasonably appropriate and adapted to mitigate those risks. 24 Detective Superintendent Fogarty has provided a detailed account of Mr Jakovac's past conduct in an exhibited statement of facts relating to why the interim control orders should be made, and an annexed statement of facts relating to why the interim control orders should not be made, being documents furnished to the AFP Minister as required by s 104.2(3)(aa) of the Criminal Code. He has also provided additional facts why an ICO should not be made, referring to Mr Jakovac's conduct since his release from custody on 25 July 2022, including in particular obtaining a job and engaging positively with police. 25 The essence of the key reasons favouring the making of an ICO are distilled in a summary of those grounds, and again furnished to the AFP Minister, as required by s 104.2(3)(aa) of the Criminal Code, which I consider amply justify the very limited sorts of control orders sought by Detective Superintendent Fogarty, in terms of that being reasonably necessary, and reasonably appropriate and adapted for the purposes identified in s 104.4(1)(d)(i) and (ii). In reaching that conclusion, I have carefully considered the submissions advanced by Mr Jakovac in written submissions and orally, having regard to his relative youth at the time of his offending and still being quite young now, the motivation for the offending of "fitting in", which Judge Buscombe described as having an air of fantasy about it, the absence of any record of violence, him never having engaged in more serious terrorism or terrorist related offences, his good behaviour in custody, the positive social influences upon him, his engagement in programs to counter violent extremism, him engaging in paid employment and having a positive social life and the absence of any evidence of behaviour of concern. All of those observations appear to be correct, but that does not grapple with the nature of his prior offending, done in private online, and the risk that this may recur, which cannot be said to be below a level of concern in the absence of compelling evidence that this is all in the past. 26 The problem with Mr Jakovac's approach to the contrary is that this is a risk assessment exercise. He and he alone is best placed to demonstrate in a compelling way that his outlook and stance has changed, whether by the best means of direct evidence from him, or the distinctly second-best means of indirect evidence from another person or other sources, such evidence as there is being at best a positive indicator but ultimately equivocal or at least uncertain. But if, at present, he chooses not to do so by either means, the ordinary inference would be that there at least remains a live risk that such material change has not in fact taken place, or taken place to a sufficient degree. 27 In the alternative, Mr Jakovac takes issues with a limited number of the control orders sought. He does not object to control orders that deal with living at specified premises, staying away from certain types of places, not leaving Australia, not possessing or producing documents which encourage a range of terrorism or related activities or propaganda, including nominated extremist organisations with that bent, possessing or using specified things or substances, such as dangerous chemicals or communicating with specified categories of risky people, including a list of particular individuals. I am satisfied that each of those controls are reasonably necessary and reasonably adapted to the preventative purposes in s 104.4(d)(ii) and (iii). 28 Mr Jakovac objects to some or all of the remaining controls, either directly or indirectly. He mostly does not object to a range of activities being prohibited, being unlawful activities (with one key exception), not associating with groups or associations without permission, or public appearances (with one key exception). The exceptions, being aspects he does object to concern: (a) In accordance with proposed control 6.1.1, a control against committing any offence against State, Territory or Commonwealth law punishable by a term of imprisonment. Were it not for the requirement of being punishable by a term of imprisonment, I would consider that restriction to be excessive, but with that limitation I do not consider that to be so. Few in our society commit such offences, and with Mr Jakovac's background, he ought to be required to maintain that level of law abiding activity as a risk control mechanism. (b) In accordance with proposed control 6.1.6, a prohibition on, as on "[p]resenting at, or appearing as a presenter or speaker at, or appearing on stage at, or providing public endorsement of any other presenter or speaker at, any public gathering that is publicly or privately broadcast via the Internet or any telecommunications network, and/or attended by five (5) or more people," on top of a prohibition by proposed control 6.1.7 on "[m]aking any public appearance or statement for publication in any form to any person, or cause any statement to be published by any person on his behalf, in relation to any of the following matters", followed by a list of matters concerning violence, terrorist organisation activities and ideologies including of a stipulated organisation and the use of weapons etc. I consider that the proposed control 6.1.7 is a sufficient safeguard and that proposed control 6.1.6 does not meet the description of being reasonably necessary or reasonably appropriate and adapted to the purposes in s 104.4(1)(d)(ii) or (iii). I consider that the wider restriction in proposed control 6.1.6 goes considerably further than is reasonably necessary, and in fact may impede Mr Jakovac's rehabilitation, in the event that he wishes to engage in such activity in the future. Proposed control 6.1.7 will therefore be made, and renumbered as control 6.1.6. (c) Communications controls, prohibiting Mr Jakovac from using any computer or tablet device, including gaming devices, other than as provided by the AFP and related controls, including using a fixed landline, public telephone or satellite telephone, while not objecting to only using an AFP provided mobile phone, and being restricted as to the internet platforms he can go on, the internet services he can use and the email accounts he can use. Mr Jakovac submits that being limited to accessing the internet via a single device provided by the AFP will have significant impacts on his ability to engage in employment and further education and that a more appropriate mechanism would be that he obtain approval to use another device. I am unable to accept that argument for a number of reasons. First and foremost, there is significant scope for the orders as made to be adjusted with the agreement of the AFP. Secondly, I do not accept that the use of an AFP provided device constitutes any significant impediment to employment or further education. Thirdly, all of these communication controls, both opposed and not opposed, are a suite of measures designed to get to the very nub of the problem that gave rise to Mr Jakovac's offending in the first place, being particular misuse of the internet, including the vulnerable position he had in wanting to fit in with other extremists. It may be that by the time of the confirmation hearing that is required that some of the objected to measures will no longer be needed. But at this stage I am satisfied that such controls are reasonably necessary and reasonably appropriate and adapted to the purposes in s 104.4(1)(d)(ii) or (iii). 29 With the deletion of proposed control 6.1.6 for the reasons set out above, and subject to any further necessary adjustments that are identified, I will make the control orders sought by Detective Superintendent Fogarty. Procedural orders will be made separately for a confirmation hearing in the earlier part of 2023. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.