Introduction
22 At the hearing for the first interim control order, the respondent was represented by Counsel. At that time, only the imposition of certain controls were in contest, namely Controls 1.1, 2.1, 5.1(g) and (h), 9, 11.1(e), and 16. I reached the view that:
(a) Control 1.1 should be imposed subject to amending the curfew time.
(b) Control 2.1 should be imposed.
(c) Control 5.1(g) should be imposed, but Control 5.1(h) should not be imposed.
(d) Control 9 should be imposed, noting that a particular undertaking was to be given by the applicant to assuage a particular concern that the respondent had about a future employer being informed of his offending.
(e) Control 11.1(e) should be imposed, subject to a qualification exempting communications with a close family member as defined in s 102.1(1) of the Code.
(f) Control 16 should be imposed.
23 Although the applicant in the first proceeding elected to confirm the first interim control order pursuant to s 104.12A(1) of the Code, the matter did not proceed to a confirmation hearing in light of the fact that the respondent was in custody following his arrest on 16 January 2021 in respect of the Contravention Offence. The first interim control order was varied from time to time to take account of the fact that some of the controls were no longer appropriate given the respondent was in custody. However, after the respondent entered his plea of guilty to the Contravention Offence on 17 December 2021, it was apparent that, by that time, a confirmation hearing lacked utility. On 23 December 2021, the respondent consented to the first proceeding being discontinued, with no order as to costs.
24 In her affidavit, the applicant explains why each of the controls that are presently proposed should be imposed on the respondent. The proposed controls are in very similar terms to the controls imposed by the first interim control order. Controls 1 to 5 (with the exception of Control 5.1(k)), 6, 7 (other than for exceptions that are drafted more broadly), 8 to 11, 13 to 18, and 20 are in the same or substantially the same terms as the controls imposed under the first interim control order. The applicant has prepared a table which compares the controls imposed by the first interim control order with the controls that are now proposed. The table is annexed to these reasons for ease of reference.
25 Proposed Control 5.1(k) prohibits the respondent from possessing, purchasing, or using not only firearms or ammunition, but also bows and arrows, crossbows or spear guns. The applicant has explained that, in recent years, radicalised individuals have sought to use such weapons in planning, preparing for, or carrying out terrorist acts in Australia and internationally.
26 Controls 12.1 and 19.1 are drafted in more restrictive terms than the controls imposed by the first interim control order. The proposed new controls enable the respondent to use only a permitted mobile phone and SIM card, and a permitted computer or tablet device provided to him by the AFP. As explained by the applicant in her affidavit:
120. The purpose of seeking to restrict the Respondent to using one phone, one SIM card and one computer or tablet device provided to him by the AFP is to ensure that the AFP has the ability to monitor the Respondent's communications, and to reduce the risk that he will be exposed to or seek out extremist material, which has been a demonstrated feature of his offending and past behaviour and of concern to law enforcement.
121. I consider it is necessary to expressly limit the Respondent to using one SIM card, so as to make clear that the Respondent is not permitted to use his permitted mobile phone with a number of different SIM cards, each of which would be linked to a different mobile service. If the Respondent had unrestricted access to SIM cards, or to any other services, devices and platforms, his communications and online activities would be significantly more difficult, and potentially impossible, to monitor.
122. The Respondent's previous offending involved him accessing, drafting, promoting and distributing an extensive amount of extremist material and Islamic State propaganda on his mobile phone and on his laptop. Accordingly, it is necessary for the AFP to be able to monitor the Respondent's activities on his devices to ensure he does not access, draft, promote or distribute such material again, and, if he does, take appropriate steps.
123. I consider that the more restrictive controls I seek in this interim control order are reasonably necessary and reasonably appropriate, particularly taking into account the Respondent's conduct in committing the Contravention Offence while the First ICO was in effect, which demonstrated that controls sought in the terms of Controls 12.1 and 19.1 of the First ICO are no longer sufficient to mitigate the risks posed by the Respondent.
124. It is necessary for police to be able to monitor the Respondent's online activities to ensure he does not access, publish or distribute such material again (and if he does, to take appropriate steps). The ability of police to more closely monitor the Respondent's communications will also assist in detecting and preventing him from communicating with persons the subject of Control 11, or engaging in communications in preparation for, or support of, a terrorist act or in support of facilitation of the engagement in hostile activities in a foreign country.
125. These controls seek to balance the objectives I have just described with the Respondent's legitimate need to use certain devices, such as a mobile phone and computer, and services (such as a social media platform and email account). The AFP is willing to provide the Respondent a mobile phone and SIM card that can be used in accordance with Control 12 and a computer or tablet device that can be used in accordance with Control 19.
27 As I have noted, although ss 104.4 and 104.5 of the Code contemplate an ex parte procedure for obtaining an interim control order, the respondent was present at the hearing. He addressed the Court on the proposed controls, specifically proposed Controls 1, 5.1(a), 5.1(f), 5.1(g), 5.1(i), 6, 8, 9, 11.1(b), 12.3, 16, 17(b), and 19.2. It is fair to say that the respondent raised a number of matters which were of legitimate concern to him respecting the scope of the controls and their clarity. He expressed his willingness to comply with the controls, and his desire not to contravene them unwittingly.
28 Before discussing the particular proposed controls addressed by the respondent, I record that the applicant advanced three overarching submissions as to the appropriateness of all the controls. First, the proposed controls are intended to operate as a suite of measures. Secondly, and relatedly, the proposed controls are designed to be complementary and to cover gaps to prevent circumvention. The applicant noted that the respondent had not taken issue with controls requiring him to have a permitted laptop and a permitted phone, but he did take issue with controls designed to prevent any gaps if, in contravention of the controls, he engaged in behaviour that involved the use of non-permitted devices. The applicant reasoned that without the suite of controls, including those prohibiting the respondent from using other persons / non-permitted devices, the respondent could thereby circumvent the objectives of the interim control order. Thirdly, Control 21 confers a facility to seek specific exemption from the requirements or prohibitions specified in Controls 1 to 20. This enables a degree of flexibility to be introduced, where appropriate, in the operation of the controls.
29 These submissions were advanced to urge caution before modifying the controls lest their operation, as a whole, be impaired.
30 I also note that the Court's power to vary an interim control order at a confirmation hearing is limited to removing a control: s 104.14(7)(b). As I observed when making the first interim control order:
23 ... This is consonant with s 104.11A(2)(b) of the Code which provides that an interim control order can be varied only if the variation does not involve adding any obligations, prohibitions or restrictions to the order. I accept the applicant's submission that I should proceed cautiously before limiting a proposed control that is prima facie justified, in terms of s 104.4(1)(d), on the material presently before the Court, in circumstances where the respondent has not yet filed evidence or has merely provided an untested explanation for an amendment he seeks, which can only be fully explored at a confirmation hearing.