Satisfaction as mentioned in s 104.4(1)(d) of the Code
45 Subsection 104.4(1)(d) of the Code provides, in summary, that the Court may make an ICO if it 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 either: protecting the public from a terrorist act (subparagraph (i)); or preventing the provision of support for or the facilitation of a terrorist act (subparagraph (ii)); or preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (subparagraph (iii)).
46 At the ICO stage, the Court considered the proposed obligations, prohibitions and restrictions to be imposed on Mr Dakkak at considerable length: ICO Judgment at [22]-[63]. The Court was ultimately satisfied, on the balance of probabilities, that each of the obligations, prohibitions and restrictions that were included in the ICO as made were reasonably necessary, and reasonably appropriate and adapted, for the purpose of preventing the provision of support for or the facilitation of a terrorist act, or preventing the provision of the support for or the facilitation of the engagement in a hostile activity in a foreign country: s 104.4(1)(d)(ii) and (iii); ICO Judgment at [66]. The orders made by the Court also indicated that the Court was satisfied, on the balance of probabilities, that each of the obligations, prohibitions and restrictions that were included in the ICO as made were reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act: s 104.4(1)(d)(i) of the Code.
47 Mr Dakkak did not adduce any evidence, or make any submissions, concerning any of the control orders other than control order 6. I will accordingly separately address control order 6 and Mr Dakkak's submissions concerning it.
48 As for the balance of the control orders, Mr Dakkak did not contend that the Court at the ICO stage erred in concluding that each of the obligations, prohibitions and restrictions in those were reasonably necessary, and reasonably appropriate and adapted for the purposes referred to in ss 104.4(1)(d)(i), (ii) or (iii). Nor did he submit that anything had changed since the ICO stage.
49 For essentially the same reasons as those given in the ICO Judgment, I am satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions imposed on Mr Dakkak by the ICO are reasonably necessary, and reasonably appropriate and adapted, for the purposes referred to in ss 104.4(1)(d)(i), (ii) and (iii) of the Code.
50 In making those findings, I have given particular weight to Ms McDonald's detailed explanation of why the control orders should be imposed: affidavit of Amelia Jane McDonald sworn 17 August 2022 at [64]-[131].
51 As for control order 6, that control order prohibits Mr Dakkak from accessing, acquiring or possessing material which has certain qualities, or address or relate to certain topics, unless the material is published or broadcast by certain organisations. As noted earlier, Mr Dakkak contended, in effect, that control order 6 was not reasonably necessary, or reasonably appropriate and adapted, for the purpose of either protecting the public from a terrorist act, or preventing the provision of support for or the facilitation of a terrorist act. He claimed that control order 6 was too broad and restrictive and would impact on the practice of his faith. He submitted that control order 6 should be varied so it only prohibited him from accessing material that "predominantly" addressed or related to the specified topics and that "Australian bookstores" should be added to the list of "exemptions". Mr Dakkak's evidence was that it took the AFP over a month to consider an exemption request which appeared to relate to a book in an Australian bookstore.
52 Ms McDonald relied on an affidavit of another senior AFP officer, Mr Peter Fogarty, who holds the rank of Superintendent in Enduring Risk and Special Investigations. Mr Fogarty's evidence addressed the circumstances in which Mr Dakkak had sought exemptions from control order 6 pursuant to paragraph 21 of the control orders. That evidence explained why it had taken the AFP over a month to address Mr Dakkak's exemption request.
53 Mr Dakkak made a similar submission in respect of control order 6 at the ICO stage. The Court declined to vary control order 6 as proposed by Mr Dakkak and reasoned as follows (ICO Judgment at [44]-[48]):
In general terms, Control 6 prohibits the respondent from accessing and possessing certain material. It was the respondent's breach of Control 6 of the first interim control order that led to his conviction for the Contravention Offence.
The respondent's concern is that this control could be breached inadvertently or unintentionally. He appeared to suggest that the Contravention Offence was of this character or was an example of a de minimis breach.
As I stated at the hearing, I do not propose to go behind the findings of the sentencing judge in respect of the Contravention Offence. However, I accept that, in operation, it is possible that Control 6 could be breached inadvertently.
I have reflected on whether the terms of Control 6 could be modified to cater, expressly, for inadvertence, including by conditioning the control, in the case of electronic access, to exempting access for a limited time period, as the respondent suggested. I have reached the view that any attempt to modify the terms of the control, as proposed, is likely to lead to a substantial weakening of the measure, and possible uncertainty in its application. I am persuaded that the question of whether the control is breached is best determined by objective circumstances. The onus should be placed on the respondent to act responsibly and carefully, mindful of the controls placed upon him. Further, as the applicant submitted, should the respondent innocently or unwittingly access prohibited material, it is within his competence to make disclosure of that access by bringing it to the attention of the AFP in a timely fashion.
The respondent also raised the question of whether an additional exception to Control 6 should be permitted to allow him to purchase, from an Australian bookstore, a publicly available book. I am not persuaded that, at the present time, such an exception should be provided. This is because the terms of Control 6 are specific as to the subject matter in respect of which access is prohibited. Given the particular nature of the prohibited material, I do not see Control 6 as acting as a substantial impediment to the respondent purchasing or otherwise acquiring books from an Australian bookstore within the permitted scope of the control. If there is doubt whether the respondent can access a particular book from an Australian bookstore, he can request an exemption under Control 21.
54 Despite that finding at the ICO stage, Ms McDonald proposed some variations to control order 6 to meet some of concerns that had been raised by Mr Dakkak. In particular, Ms McDonald proposed that the following additional paragraphs be added to control order 6:
6.2. Control 6.1 does not apply to material in a book that you purchase from an Australian retailer of books provided that you notify the AFP Superintendent of the title of the book within 24 hours of purchasing the book.
6.3. If at any time you become aware that a book that you have notified the AFP Superintendent of pursuant to Control 6.2 contains material of a nature identified in Control 6.1(a)-(c) (Prohibited Material), you must notify the AFP Superintendent within two hours, identifying the section/s of that book that contain Prohibited Material, by reference to chapters and/or page numbers.
6.4. If the AFP Superintendent notifies you in writing that the exception in Control 6.2 will cease to apply to a specified book, Control 6.1 will apply to the material in that book from 5 pm on the next day after that notification is sent.
55 In his submissions at the hearing, Mr Dakkak initially maintained that control order 6, including the variation proposed by Ms McDonald, was still disproportionate and created a risk of him inadvertently contravening the control order. Ultimately, however, after the terms of the proposed control order were explained to Mr Dakkak and Ms McDonald agreed to a further minor variation, he appeared to accept that control order 6 was reasonable and appropriate.
56 Having considered the evidence as a whole, I am satisfied on the balance of probabilities that the obligations, prohibitions and restrictions imposed on Mr Dakkak by control order 6 as varied are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act and preventing the provision of support for or the facilitation of a terrorist act: s 104.4(1)(d)(i) and (ii). I am satisfied that the minor variation made to control order 6.3 reasonably and appropriately deal with Mr Dakkak's concerns as to the breadth of the order and the possibility of inadvertent breach. That variation is appropriate, but it is not made because I am not satisfied "as mentioned in" s 104.4(1)(d), for the purposes of s 104.14(7)(c).
57 I am satisfied as mentioned in s 104.4(1)(d) of the Code in respect of the orders proposed by Ms McDonald in their entirety.