O'Rourke v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2023-10-27

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 Category: Principal judgment Parties: Jack O'Rourke (Applicant)

Commissioner of Police, New South Wales Police Force (Respondent) Representation: Counsel: K Curry (Respondent)

Solicitors: Mainstone Lawyers (Applicant) Crown Solicitor (Respondent) File Number(s): 2023/00157581

Applicable legislation

The power to revoke a licence is provided for in s 24 of the Firearms Act. Section 24(2)(c) states that a licence may be revoked if the Commissioner (or on review this tribunal) is of the opinion that the licensee is no longer a fit and proper person to hold a licence.
Section 24(2)(d) provides that a licence may be revoked for any other reason prescribed by the regulations. Clause 20 of the Regulation states that a licence may be revoked if the Commissioner (or on review this tribunal) is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
The issues in this application are therefore whether the applicant is a fit and proper person to hold a firearms licence and whether it would be contrary to the public interest for him to continue to do so.

Respondent's evidence

The respondent did not call oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), the contents of which are drawn upon below, a number of video and audio recordings that were played at the hearing and on cross-examination of the applicant. At this stage, however, it is convenient to outline two affidavits sworn by Bridget Dawson, one on 15 September 2023 (exhibit R2, with exhibit BD-1) and the other on 23 October 2023 (exhibit R3, with annexures). They identify the sources of some of the documents relied on and provide background to the case as a whole.
Ms Dawson is a solicitor employed in the office of the New South Wales Crown Solicitor and has carriage of this matter on behalf of the respondent. The affidavit dated 15 September 2023 provides evidence about the circumstances in which the applicant was granted a licence.
On 20 November 2020, he submitted an application (exhibit R1, pp 17 - 22) which gave his name as "Jack O'Rourke Hammond". In response to the question whether he had been known by other names, he responded with the name "Jack Thomas". The online application template used by the Service New South Wales website permits the insertion by an applicant of only one previous name.
On 11 January 2022 the respondent decided to grant the applicant a category AB firearms licence in the name of "Jack O'Rourke Hammond". On the same day, the applicant emailed the Firearms Registry requesting that his firearms licence be reissued under his new name, "Jack O'Rourke" and attaching a number of documents, including a copy of his birth certificate that indicated that before 26 June 2003 he was named "Jack Terrence Thomas" and between 26 June 2003 and 17 January 2017, he was named "Joseph Terrence Thomas".
On 25 January 2022, New South Wales police Senior Sergeant John Manuel, of Counter-Terrorism and Special Tactics, emailed the Firearms Registry informing them that the applicant had previously been charged with terrorism -related offences under the name "Joseph Thomas" (id., 30 - 31) and seeking revocation of the applicant's firearms licence on public interest grounds. The next day the respondent suspended his firearms licence and on 20 February 2023 the Commissioner revoked it on public interest grounds (id., 49 - 50).
Ms Dawson had been instructed that on 11 January 2022, when the Commissioner decided to grant the licence, the Commissioner had not been aware that the applicant had been previously named Joseph Thomas and did not identify any concerning criminal history. Had the Commissioner known at the time of the applicant's previous name and criminal history, the grant of a licence would have been refused, and on becoming aware of it the Commissioner revoked the applicant's licence.
The affidavit then describes how the respondent's legal representatives obtained a copy of a 2006 ABC Four Corners episode named "The Convert", and copies of the Commonwealth Director of Public Prosecutions brief of evidence from the applicant's two criminal trials in 2006 and 2008, including a copy of the applicant's interview with the Australian Federal Police in Pakistan in 2003. Transcripts of the criminal proceedings were also obtained, as well as a number of related documents.
Also explained are the steps taken to obtain copies of United Nations Security Council resolutions, statements made by the UNSC President, copies of judgments relating to the applicant and recordings of ABC interviews with John Faine on 29 October 2013 and with ABC's PM program on 30 August 2006.
Ms Dawson's affidavit dated 23 October 2023 (exhibit R3) was intended to correct an error made in the previous affidavit and provide further relevant evidence. The error related to the date of an email sent on 11 January 2023, which had been shown as being on 11 January 2022.
The affidavit also clarified that the applicant's Victorian junior firearms licence was issued on 23 October 1989, expiring on 22 October 1990. His AB licence was issued on 26 August 1991 and expired on 25 August 1997. It also attached a copy of the statement of facts relating to the interim control order. Ms Dawson was not required for cross-examination.

Applicant's evidence

In oral evidence at the hearing the applicant adopted each of three statements, dated 21 August 2023 (exhibit A1), 9 October 2023 (exhibit A2) and 19 October 2023 (exhibit A3) respectively. As commonly happens in cases of this nature, the statements contain a certain amount of material by way of submission rather than representation of fact.

Statement 21 August 2023

In the first of those statements he explained that he joined the Moslem faith in 1997 and travelled to Afghanistan around February or March 2001, believing at the time that he could help to end decades of civil war. The country was at the time about 96 percent at peace and he believed he could help to make it 100 percent. He went there to fight for the legitimate government of the time, the Islamic Emirate of Afghanistan, also known as the Taliban, against the Northern Alliance.
While over there he established a home for his family, did basic military training and fought on the frontline at Bagram. He then decided it was certainly was not the Islamic utopia the extremists had been describing, and accordingly packed up his family's belongings just days before the 9/11 terrorist attacks on the United States, to leave for Australia by way of Indonesia, to visit his parents-in-law.
Following the terrorist attacks in the United States, Afghanistan and Pakistan went into border lockdown. He managed to escort his wife and child back to the Pakistani border, but it was too dangerous for him to cross and he remained in a border town in hiding with other non-Afghans. Months later he was able to cross into Pakistan around mid-2002 and stayed in a Pakistan residence home sympathetic to immigrants fleeing from Afghanistan for fear of arbitrary torture and mistreatment. His passport was altered to make it look as though he and his family had been in Pakistan the whole time and travel arrangements were made for him, as they were for all those fleeing. He was provided with a small amount of money and airline tickets home but was arrested immediately on presenting his passport at Karachi airport, as it was flagged, and he was immediately handed over to CIA and Pakistani ISI for interrogation.
During that time he was continually tortured by ISI in the presence of CIA. To escape torture he admitted to being a member of Al Qaeda, though he had never been a member. He was deported on a temporary passport back to Australia, returning some time in late 2003 or 2004. The control order to which he was made subject was ultimately discontinued by the Supreme Court of Victoria, following the quashing of all terrorist and passport related charges against him.
He had used other names, such as "Jihad" and other Islamic names or nicknames. He had no associations with any person from his past and had not done so since 2014. He is no longer of the Moslem faith and deeply regrets the previous associations he had when he travelled to Afghanistan. He renounced his Moslem faith in 2014.
As regards the apprehended violence order, he was forced into court action against his former partner as she contacted him in 2015 in relation to sending their children overseas to Islamic boarding schools in Malaysia or Yemen. He immediately sought to prevent her from doing such a thing to his children. He obtained an AFP flight watchlist order for his children so his ex-partner could not take or send them overseas. She threatened to have him beheaded for having a girlfriend and had people from the Islamic community threaten his life for apostasy.
His ex-partner encouraged his son to ask him if he knew that the consequences of apostasy were death. He applied to the Frankston Circuit Court for an AVO against his ex-partner. He had the text messages of the beheading threat. The matter was resolved by the parties making a mutual agreement.
Regarding the AVO in New South Wales, he became friendly with a work colleague who told him that her partner was controlling and abusive. The partner found out about the connexion and threatened to kill him. He contacted police and they took out an AVO against the partner.
He is not now the same man as he was in the early 2000s and has "come full circle". He now considers himself simply "Jack", a proud fifth-generation Australian with Aboriginal and Irish ancestry. He is a Christian and keeps his religion and political views to himself. He is a happily married, hard-working man in all respects. He recognizes the mistakes he made in the past, which occurred over 20 years ago. He provided a significant amount of information relevant to his background in his initial licence application, which was granted.
He said that all he seeks is a fresh start and to get on with his life. He is not a threat to anyone and simply wants a firearms licence so he can do some recreational hunting.

Supplementary statement 9 October 2023

In his supplementary statement dated 9 October 2023 (exhibit A2), he stated that on returning home in approximately 2003 from being tortured in Pakistan for five months he began work in the Footscray fruit and vegetable markets. Not long afterwards, he was contacted by ASIO agent Robert Rickder, whereupon he continued to assist Australian authorities in matters of national security.
He continued to work and saved a deposit for their first home. In the week that was supposed to be a settlement on the house at [name] Street, Werribee, Victoria, the AFP informed the media and arrested him, 17 months after he had returned home. He was charged with security-related and passport offences. He was removed from the title of their home by the bank and they were very close to losing their deposit. Maryati [name] was the only one on the title. She was not working full-time, and their loan was changed from a 95 percent loan down to a 75 percent loan. With his parents' and friends' help, they came up with the shortfall on the deposit. Maryati had a friend of her son (Jacob [name]) come on the title of the property at Werribee in trust for him, and signing a statutory declaration that he had no financial interest in the property.
He then started working at a finger food factory in Hoppers Crossing. He was looking to buy the business, but after doing the numbers decided against it. He then obtained his HC and MC drivers' licence and started linehaul interstate truck driving all over the East Coast and South Australia. He then worked in shipping containers at Sea Road Logistics in Port Melbourne, also doing container security work, delivering to the Spirit of Tasmania and at their wharf where Sea Road had two ship stations. After that, he tried to get work in the Western Australia Port Hedland mines, so he drove quad road trains out west through the Pilbara to Woody Woody Mine, carting 170 and half tonne loads of manganese through to Port Hedland port authority.
After nine months he was unable to get work in the mines driving road trains, so he came back to Victoria. He was exhausted in the loveless relationship he had with Maryati and the cult of Islam, so he left the relationship in September 2014. He moved in with his parents and the children and went back to working night shifts at Sea Road Logistics, taking the children to school in the morning, sleeping and then picking them up and dropping them home to his mother before he started his shift at night. Mayati was at that time admitted to the psychiatric ward at Werribee Hospital and diagnosed with cluster B borderline personality disorder, narcissism and as histrionic.
Maryati informed him via an email that she wanted to send their children overseas to Yemen or Malaysia to learn Arabic. He was vehemently opposed to the idea, considering the family history. She insisted and had people in the Islamic community threaten his life for apostasy. He sought an AFP flight watchlist order to prevent her from sending their children overseas again. After he obtained the order, his family sided with Maryati, much to his dismay. She cried and his parents and brother all consoled her. If he had not sought the flight watch listing all his children would once again have been sent overseas. He had made that mistake once; he was not going to make it again. He also received threats of violence from her and his son, so he sought a DVO against her. It was dismissed, and he could only manage to get mutual undertakings. After the threats he received from her and the community, and losing so badly in the family courts, he left Victoria for New South Wales in December 2015.
He obtained work through some Christian friends, but his self-confidence was still at an all-time low and he was living in his car, sleeping rough and living in crisis accommodation. He eventually got a Blacktown Council site van as it had a toolshed for his tools and he was living in it on the side of the road. He took a job with some people who became aware of his past, so he got another job, but was at that time living in the yard that they rented. The manager of the yard was made aware of his plans to leave and threatened his life for doing so. He contacted police, as it was a public holiday and he needed help towing his van out of the yard.
It wasn't that easy as the van was quite dilapidated and he could not tow it with his vehicle at the time. He managed to get out of there and back to Leichhardt for a short period until he moved out west to another friend's garage, which he renovated and did not have to use a bucket to urinate in. He met Marree and moved in with her and after several months they married. He continued to work through an agency, and got full-time work and got himself back on track enough to apply for his firearms licence, as it had been so long. All he wanted was a fresh start and to get on with his life as he had done for decades previously.
He gave his original name on his firearms application, which was more than enough considering the ridiculous amount of media coverage Ihe had received. He has an ardent desire, as hunting is an innate part of who he actually is as a person. His licence was not suspended after 15 days. It was valid on the Firearms Registry for over a year without incident, before it was revoked. Before that he held a firearms licence before and after converting to Islam, again without any incidents.
He has never instigated violence against anyone and has most certainly been the victim of multiple acts of aggression. He does not deserve to be punished and persecuted for all time. He is disgusted by, and rails against, attacks on innocent people. For the love of all that's good in this world, he went overseas because just the words "collateral damage" made his blood boil. He is most certainly not a terrorist or anything of the sort. It's disgraceful and completely ironic that he has been labelled these things, as he is diametrically opposed to those beliefs and ideologies.
When his rendition began overseas, and he was held in indefinite detention, he had nothing but hope that eventually the truth would become apparent to authorities, and they would see that he poses no risk whatsoever to anyone's safety in any way, shape or form. He seeks only legitimacy and some well-deserved restorative justice. He does not simply want to recover his licence for a bit of recreational hunting. That is not the case at all. Hunting and fishing, camping and bushwalking, four-wheel driving and enjoying the bush is in his DNA. The land and living off it are inseparable from who he is as a human being.
It is absolutely unjust to give him a life sentence and deny him his life back for association with people he never held the same views with and of whom none were viewed in that light at the time that they are now seen. Hindsight is 20/20. He is not and has never been a terrorist. All terror-related charges against him were ultimately dismissed by the court.
As regards his passport (which by the way they returned to him, he thinks in 2017) in early 2001 he had gone to the Taliban embassy in Islamabad, Pakistan. They were the government at the time, so he did not wish simply to enter the country without a proper visa. When the Taliban was toppled, he believed he now had in his passport not merely a defunct government visa but effectively a one-way ticket to Guantánamo Bay. He was desperate to see his family after being in hiding for almost two years. He had the Taliban visa removed and had it replaced with a Pakistani one. Guilty as charged, and he has paid dearly. His family name was dragged through the media for years.
He wants nothing to do with any so-called Islamic community, or anyone for that matter who believes in hurting innocent people. He has never believed in such things, even as a Moslem. Even the words "collateral damage" used to make his blood boil. That was why he went to fight in Afghanistan in the first place, as he believed back then he could help end the decades of civil war. What an imbecile he was. He did not study the centuries of conflict there. He was naïve and a fool to think by joining a war he could stop one.
He thinks somehow that he used to have an invisible tattoo on his forehead and back, one saying "sucker" and the other "kick me". Now he is simply not that guy anymore. He has come full circle. He is Jack, a proud fifth-generation Australian with Aboriginal and Irish ancestry, a Christian who keeps his religion and political views to himself. A hard-working man in all respects worthy of a fair go.
He had previously held a firearms licence in Victoria for over 20 years. His father was a firearms safety officer for over 10 years at the Williamstown police station, where he grew up. The dangers and precautions necessary and the great responsibility of having a firearms licence, loading and reloading cartridges and shells, storage of guns and ammunition, had been forever planted in him by his father, who instilled in him the love and passion for game and game hunting and conservation. Safety and security of their firearms and ammunition have always and will always be at the heart of his love for target practice and game hunting.
He has again passed his waterfowl identification test and obtained his R licence endorsement. He seeks only the legitimate use of his firearms and to carry on his family's tradition of safe and responsible hunting, in the best country in the world. Since returning home he has done nothing but make amends for getting caught up in global events way over his head. He constantly cares for the community and public interests, as those are made up of individuals just like him who have also made mistakes in the past but should not be condemned to be punished for them for life when they are sincerely remorseful and have hurt nobody in their misguidance. He constantly cares for the community and public interest around him when he drives heavy vehicles on the roads. As is the privilege of a driver's license, so to our firearms licences.
He and Marree plan on becoming primary producers as soon as possible, so his application for a firearms licence is far from being just for recreational purposes. He is now completely different person from the one who left Australia over 20 years ago with naïve ideas to help in another country, and he can be relied upon to fulfil all his responsibilities, should he be granted the privilege again of holding a firearms licence.

Further supplementary statement, 19 October 2023

The applicant's further supplementary statement dated 19 October 2023 (exhibit A3) is essentially a commentary on a document annexed to Bridget Dawson's affidavit of 23 October 2023 (exhibit R3) which is headed "Attachment C -- Statement of facts relating to why the order should be made" in relation to the interim control order. It is not easy to follow and some inconsequential points have been omitted. The page references are to exhibit R3.
Page 302, 7b: The interview was under duress. Never did he ask to work for those people, nor did that person, who he cannot remember, ever provide him with tickets to Male or the Maldives. He never described the gesture as a test -- that was a suggestion made by Khalid bin Attash. He wanted to go home. The point is false.
7i: he thought to himself if there was anything he could do at all to stop the killing. He then came to the realization that all he could do was to get home and get on with his life and have nothing more to do with these people.
7l: he overheard that conversation and that was all it was. There were no plans or preparations ever made to his knowledge for extracting prisoners from Guantánamo Bay.
Page 304, 7.o: that was not true, and out of context. It was the first encounter with bin Attash and he was disgusted and mortified with any such suggestions, but had to stick it out in order to be free to get home to his wife and children.
7.p: The phone number people received was to advise of their safety upon arriving home, nothing more. Merely a welfare check for all. All other points in 7.p were suggestions made by bin Attash that he reiterated to authorities.
7.q: he did not request the second alteration to his passport. All that he asked for was that the Taliban visa be removed and replaced with a Pakistani one. He had never heard of Al Qaeda until well after 9/11 on BBC News.
7.s: he was sheltered in Pakistani family homes who were sympathetic to the Taliban. The guesthouses were in Afghanistan and had all been destroyed, to his knowledge.
7.t: people received different amounts of money for travel purposes. He was no different.
8.c: all he wanted was an end to the civil war and he did not believe he ever made statements pertaining to killing individuals, as it was not in his character. Keeping in mind he was under extreme torture and duress overseas.
Page 306, 10.2.c: all senior leaders at camp Al-Farooq were killed, according to his knowledge, by US airstrikes and whilst at the camp no-one took him into their confidence whatsoever.
10.2.f: no plans or preparations were ever made to such ends.
10.2.g: the attempt at grooming Mr Thomas would never have been successful, no matter what they offered, as he was never interested.
10.4.l: Jack Roche had nothing to do with him. Just because he met him once did not mean he believed anything that he believes in. What someone else believes about a person has no bearing whatsoever on their commitment or capabilities.
Page 307, 10.4.1.c: he was not going to the frontline untrained. They call it whatever they like, it was war. He did not intend to ever travel outside Afghanistan to fight. He believes there is some truth in 10.4.e.
10.5: he never offered assistance, and had no choice in the matter. He was trapped. They came to him, he did not seek them out. 10.8 is completely false.
10.9: not true at all. Suggestions made to him about the Maldives, not Australia. Nor was he willing to offer intelligence or any other form of assistance in any way, shape or form.
Page 308, 10.10: he had never believed in such things.
10.12: he rejected all associations and ideologies.
10.13: "That's news to me".
14: an appeal against that conviction was upheld, as the record of interview was inadmissible as the evidence had been obtained under threat of torture.
309.17: it was a fabrication and he had never said anything of that kind.
310.21: like 19, that showed the age of the document as the Chandler Street home was sold in approximately 2009.
22.a: that professor had never met with him in person. If so adaptive and deceptive, why would he be taking that matter to the administrative tribunal for judgment and drawing attention to himself if he was going to conduct anything illegal or untoward. He would not be going to all this trouble.
22.b: he was tortured in offshore indefinite detention but had moved on, and so should the AFP.
22.c: he reiterated that he had moved on once back in Australia in 2003 and was exonerated of all terrorist-related charges in approximately 2008. It was now high time Australian authorities realized the value of his travelling overseas in bringing to justice many senior Al Qaeda leaders due to the information he had provided to authorities at the time.

Applicant's oral evidence

Cross-examined by Ms Curry at the hearing, the applicant said he had converted to Islam in 1997 aged about 25. He had been introduced to it by a high school friend, Salim, as there were tensions at school with Lebanese pupils. He had come to Islam by way of occult and the Bible, having concluded that all religion was one - the Old Testament, then the New Testament, then the Koran. He read translations of the Koran and lived in a mosque for a year in Newport, Victoria, which was Lebanese and quite laid-back and not extremist like the Michael Street mosque. The only teachings consisted of reciting the Koran, and he learned Arabic.
They had never discussed jihad as terrorism, it was more historic, dealing with such matters as the Soviet war (I outlined the history of that period in SRHHH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1020, [17]-[48]). Fighting for your religion was part of it. He had given 100 percent to it and was delving into it as a student of life. He trusted people and did not question them - you have to be really careful about who you trust. All had changed after 9/11. The world was different. Maryati's involvement was religious only. He had met her overseas. She had friends in Melbourne and he had travelled to South Africa where he met her and they were married after only a few hours. He did not tell his family.
Maryati came across as very educated and influenced him with her Wahhabi radicalism and jihad ideology. He wanted to do jihad overseas to bring peace to Afghanistan. He had obtained information from a Chechen website. Maryati took a historic slant, with the Soviet era and proxy wars. He had seen videos of Osama bin Laden, but he had not seemed very important at the time and was not much in the media. He himself had been asking the wrong questions.
Maryati was influential and described Afghanistan as the "ideal" society, but it was not so. He had known he was entering a war zone, although the country was 96 percent at peace. He did not recall seeing any online advertisements about training. He had wanted to fight and went to the front. but had decided to leave Afghanistan before 9/11. He was going to bring about peace, but the reality on the ground was that Afghanistan was no utopia. He had not read any United Nations reports about the conflict and had thought he knew better. He got caught up with the extremist views of others.
He had thought it would be possible to make peace with Ahmad Shah Massoud, the leader of the Northern Alliance (Ahmad Shah Massoud), which was rebelling against the Taliban government. He knew nothing about the United Nations until he was in the country, after 9/11. He agreed that he would have had to participate in violence but had thought that all would be idyllic once peace was restored. He did not know that taking part in a foreign war was a crime under the Crimes (Foreign Incursions and Recruitment) Act 1978, and did not consider the legality of what he was doing, thinking only of God's law. He had displayed poor judgment, and his actions had been "well beyond reckless". He had lied to his parents about his involvement, but he did not tell them because they would have been worried as he was in a war zone.
He had undergone some jihad training with others in Australia after he married Maryati in 1998. He went overseas in about March 2001, before 9/11, and had received jihad training early in 2001. It was not done in a camp, they were practising with paintballs and only having overnight camps. There were no weapons or live rounds on the premises, contrarily to what the ABC had said. The weapons were overseas. The ABC interview had been heavily edited, as he had been talking to the reporter over a period of months. Sally Neighbour had manipulated him into a false sense of security. His comments in the broadcast were no proper basis for a prosecution. The authorities had been using him as a guinea pig to fine-tune their legislation. He had not had an opportunity to obtain legal advice as the program was broadcast early.
While he was overseas at Al Farooq camp he met Osama bin Laden and they shook hands. He appeared to be quite dignified. Nobody cared much about him, but he was revered in the camp. Propaganda videos were shown that he did not understand a word of and he was learning about the situation on the ground. There were four Australians in the camp in all, the others arriving towards the end of the training program. They did not discuss operational matters. When he heard the comment "Explosives can change government opinions", he knew it was wrong but it was dangerous to leave. He was also repelled by descriptions of "daisy cutter" explosives used by the other side.
There was no television at the camp, but they heard about 9/11 on BBC, while he was still in Afghanistan. The trainers had said something big was coming, and thought it might be Tomahawk missiles, so they evacuated the camp. His own aim was to help unite the country. He had returned to the village near the front. Asked when he had decided that Afghanistan was no utopia, he replied that on a picnic at Kabul they had been told that a Taliban official (in a vehicle) had struck a child and left him on the road. They were self-righteous scumbags. Ahmad Shah Massoud, leader of the Northern Alliance, had later been murdered.
When speaking to the reporter John Faine he had been searching for a way to bridge the gap, to balance Afghan circumstances against the West. While in Kabul he saw girls in school uniforms.
He had arranged for the falsification of his visa because he was afraid, for following the fall of the Taliban and wanted to change his Afghan visa for a Pakistani visa. He had no choice, otherwise he would have been sent to Guantánamo Bay. The Australian Embassy was surrounded by troops. He knew what he was doing was illegal, but he wanted to get home. He was an idiot.
After returning to Australia in 2003, he remained a Moslem, but then changed his views because he no longer believed in the Prophet or the Book. He had separated from Maryati on 4 September 2014 and does not know what her views are now, but her relatives hold extreme views. His eldest son is now aged 22, and his youngest is 12. Maryati had turned them against him. He had been convicted on the passport offence in that name, but had no terrorism conviction. In his licence application he had not listed his other names, but had done so on the telephone before receiving a licence. He did not believe his licence had been suspended after 15 days, as it was on the system for 12 months. Later, on 11 January 2023, he had asked for his licence to be reissued in his new name, Jack O'Rourke.
His father had taken care of his Victorian junior permit. He had received his junior permit around 1979, then he obtained his licence in 1991, which lapsed in August 1997. He accepted what the official records stated.
In re-examination he said his communications with his parents had to be viewed in context. At Kabul he was a distance away from the front and life carried on as normal. The whole country was not a war zone, contrarily to what the Four Corners program had said. He had never considered hurting an innocent person when he went to the front. He was based in a supply centre, not in the combat zone, but saw the devastation. He had been waiting to go to the front, but the front had broken and the camp had been evacuated. He has had no contact with the Islamic community since 2016.
In addition to his own evidence, the applicant relied on five character references, the contents of which are outlined below.

Applicant's submissions

The applicant tendered written submissions dated 10 October 2023 (exhibit A5), which began by stating that the applicant accepted and concedes that he had "travelled to Afghanistan in the early 2000s and fought for the Taliban against the Northern Alliance". It was never his intention to be part of the terrorist group, he was not a terrorist and had never been one. It was his belief, albeit naïve, that he would help the people of Afghanistan in a civil war.
The media at the time and following took great interest in the story of "Jihad Jack", including through interviews as part of a Four Corners program, and radio interviews. It was clear from the material that he had explained his motivation behind why he travelled to Afghanistan and the methods he employed to remove himself from that country once he became aware of the true motives of the Taliban.
He conceded that he had made certain statements to investigating authorities, but clarified that they were made in circumstances where he had been incarcerated and subjected to horrific torture at the hands of those authorities. There was no evidence before the tribunal that he had participated in any terrorist activities, either overseas or upon his return to Australia.
His evidence was that since his return to Australia around 2003, it had been his intention to return to as normal a life as possible, with his wife and children, and become a productive and valuable member of society. That was despite numerous hardships he encountered with law enforcement authorities and on a personal level with his now ex-wife and his children. The tribunal should place significant weight on his evidence that he renounced his Moslem faith in 2014 and deeply regrets the previous associations he had during his time in Afghanistan.
He has since remarried and is in full-time employment and has been gainfully employed for many years since his return to Australia. He identifies as a proud fifth-generation Australian with Aboriginal and Irish ancestry. He is now a man of the Christian faith and keeps his religious and political views to himself. He had provided evidence to the tribunal of his genuine reasons for wanting a firearms licence and that it is his and his wife's intention to become primary producers. Once that eventuates, his need for a firearms licence would be for more than recreational purposes.
Significant weight should be placed on the fact that he has held a firearms licence in Victoria for a lengthy period of time and in New South Wales for a lesser period of time, with no breaches of the Act or regulations pertaining to firearm possession and use. He submits that the tribunal would be satisfied that his time in Afghanistan was done for altruistic, albeit naïve, purposes and not for the purposes of terrorism.
He submits that he is a completely different man from the person who travelled to Afghanistan in the early 2000s. He suffered horrific torture and incarceration at the time at the hands of overseas authorities and was later jailed in Australia before his convictions were quashed. The tribunal should also give careful consideration to the fact that his travels overseas to Afghanistan occurred over 20 years ago and he had not been the subject of any further criminal charges since his return to Australia and the dismissal of the charges relevant to that time against him. He asks the tribunal to accept that he is a changed man and that he be given the opportunity to prove that, by setting the decision of the Commissioner to revoke his firearms licence aside.
The applicant submits that on the evidence before the tribunal there is no real or appreciable risk identified and that the tribunal would be satisfied that there is virtually no risk associated with him should he be given the privilege of again being granted a firearms licence.
In oral submissions at the hearing, Mr Mainstone adopted those submissions, emphasizing that his client had never been a terrorist but made a bad decision over 22 years ago. He had tried to leave Afghanistan as soon as possible when he found out the real position.
The Four Corners program interview was consistent with his evidence and accepted that he had made bad decisions, but for altruistic motives. He had paid a heavy price: jail, torture, arrest and prosecution in Australia. He is now a different man who leads a quiet life, is married and working full-time. He is not simply relying on the passage of time to show his new outlook, as can be seen by his character references (exhibit A4). He seeks a firearms licence in order to reconnect with his culture and hopes to become a primary producer, for whom firearms are a tool of trade.
He had no intent to engage in terrorism and had been ready to return to Australia from Afghanistan before 9/11. He had resurrected his character. As regards public confidence in the licensing system, he submitted that the media coverage about him had been bad and had put him in a bad light. The passport offence was serious, but he had no other convictions and no breaches of the Firearms Act. He presented no risk to the public.

Consideration

Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89]-[91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10]-[12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.

Fit and proper person

The first basis on which the respondent's case rested was that the applicant is not a fit and proper person to hold a licence. Section 24(2)(c) provides that a licence may be revoked if "the Commissioner [or on review the tribunal] is of the opinion that the applicant is no longer a fit and proper person and can be trusted to hold a licence".
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies: The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].

The grounds

The respondent presented a list of nine reasons why the revocation decision should be upheld. It is convenient to consider those points seriatim as a framework for consideration of the merits, and to identify the evidence and submissions for and against each one.
The first matter was that the applicant had been convicted of a serious offence contrary to s 9A(1)(e) of the Passports Act 1938 (Cth). The respondent submits that the conduct was premeditated and involved a degree of planning to arrange for the passport to be falsified. It was dishonest, as the applicant used falsified records to conceal his true travel movements to avoid detection by the authorities for his conduct in Afghanistan and association with senior members of Al Qaeda.
The sentencing judge, Curtain J, explained that it was necessary to protect the integrity of the passport system, which provides a secure and reliable form of identification. This type of offending undermined the reliability and integrity of the system on which Australia and other countries rely. Passports also allow for the movement of people across international borders and the relevant authorities in all countries have an interest in knowing who is entering and leaving their jurisdiction (R v Thomas [2008] VSC 260, [6]).
The applicant does not dispute that he committed the passport offence for which he was convicted and sentenced, but maintains that in the circumstances he had little choice. He had arranged to leave Afghanistan before 9/11, having discovered that the reality on the ground in that country was far different from the arcadian landscape painted by Maryati and others.
He successfully arranged for his family to cross into Pakistan, following them a few months later, but as Curtain J related, "In the context of post-9/11, you [the applicant] regarded the presence of a Taliban visa in your passport as a one-way ticket to Guantánamo Bay and that anybody found with such a visa would be regarded by Pakistani authorities as a terrorist. So as to avoid those consequences, your passport was altered and a Pakistani visa, which had been legitimately issued out of Cairo on 28 October 2000 was placed over the Taliban visa which was then not observable to the naked eye". He said he was unable to obtain help from the Australian Embassy because it was surrounded by troops.
Secondly, the respondent pointed out that the applicant had been charged, but ultimately not convicted, of a serious terrorism offence. In the sentencing proceedings for that offence, of which he was originally convicted and which was ultimately overturned, Cummins J had this to say: "The person with whom you entered the room at the safe house, Khaled bin Attash, for your clandestine meeting was a senior and experienced Al Qaeda operative. He had been the mastermind of the bombing of the USS Cole, a film of which bombing had repeatedly been shown at the Al Farooq training camp. It is clear beyond doubt that Khaled bin Attash provided you with the money and airline ticket for terrorist purposes…. On the jury's verdict you did not receive the funds and ticket for terrorist purposes… [but] you knew full well what bin Attash's purpose was…. You let bin Attash think what he thought. You did not share your thought processes with bin Attash or with Al Qaeda, the donor of the funds and the ticket. You did not turn to Australian government representatives. You accepted the money. You accepted the airline ticket. You arranged for Al Qaeda to falsify your passport. You were on your way to Australia with the funds, with your falsified passport, on an Al Qaeda-provided airline ticket when you were arrested" (Director of Public Prosecutions (Cth) v Thomas [2006] VSC 120, exhibit R1, p 120).
The respondent maintained that his conduct showed that he was well capable of being manipulative. His dealings in Pakistan with the officers of ASIO and the AFP showed likewise. It was submitted that he was not foolish and naïve, but was an intelligent adult at the relevant times. There was no evidence that he had been tortured or ill-treated by AFP or ASIO in Pakistan.
The applicant's case was that he had been swept up in jihadist ideology through the influence of Maryati's literalist Wahhabi beliefs and other sources and that he had naïvely believed that by travelling to Afghanistan he could help to put an end to the civil war and help to bridge the gap between Western and Islamic worlds. He had been naïve and "well beyond reckless". He had arranged to leave Afghanistan shortly before 9/11 but in the confusion that followed he had been willing to do and say anything to escape from the region. He also thought that admissions made in a Four Corners program could not be a proper basis for a prosecution and that he had been given insufficient credit for the assistance he had given Australian authorities and which had enabled the apprehension of several senior offenders.
The respondent's third point was that the applicant was the subject of an interim control order under the Criminal Code (Criminal Code Act 1995 (Cth)). The court in this matter had expert evidence and evidence from confidential informants who were in detention overseas testifying to their interactions with the applicant at the Afghanistan training camp, which they confirmed was run by Al Qaeda. The informants observed that he appeared to enjoy the training and take it seriously and he was well respected at the camp. He was also reported to have said that he wanted to go to the front line to fight against the Northern Alliance, and in particular wanted to be the person who killed the leader of the Northern Alliance (Jabbour v Thomas [2006] FMCA 1286, [31]).
The AFP thought the evidence suggested that the applicant was groomed by Al Qaeda to become a resource to carry out or assist with terrorist acts in Australia on behalf of terrorist cells and that he had not revoked his sympathy for Al Qaeda and affiliated terrorist groups (id., [38]). The court thought that he was vulnerable and susceptible to the beliefs of others and therefore could be exploited because of his links with extremists, some of which were through Maryati and some through others such as Abu Bakar Bashir, the spiritual leader of the listed terrorist organization Jemaah Islamiyah (exhibit R1, p 380). The respondent submitted that this vulnerability and susceptibility to the beliefs of others was a concerning aspect of his character directly related to an assessment of the risk to public safety.
Also in evidence was a reported exchange between a prison officer and the applicant at Barwon Prison in or about August 2005. The officer was reported to have said, "I just can't understand why Moslems strap bombs on children and use them as suicide bombers" to which the applicant reportedly replied "I have no problem with these kinds of acts and accept that if I die in the name of Allah, I would go to a happy place and meet others like me and be met by 12 vestal virgins" (exhibit R3, p 16).
The applicant does not in substance deny those matters, including that he was approached to be a representative of Osama bin Laden in Australia for the purpose of assisting or participating in terrorist acts and had accepted US$3500 and an airline ticket for the purpose, but declares that he never had any intention of committing or assisting any terrorist acts, his whole preoccupation at the time being to return to Australia. He separated from Maryati in 2014, has had no contact with her since then and does not know where she is or what her views now are. He renounced his Moslem faith in 2015, being now a Christian, is remorseful about his past and wishes only to be a constructive member of Australian society. He is in a stable and happy marriage with Maree and is in full-time employment as a truck driver.
Fourthly, the respondent submits that the evidence shows the applicant engaged in the following conduct between March 2001 and 4 January 2003:

Travelled from Australia to Pakistan and then to Afghanistan for the purpose of engaging in a hostile activity in a foreign state;
voluntarily participated in a three-month training camp run by Al Qaeda where he undertook weapons and explosives training for the purpose of participating in Jihad;
met Osama bin Laden on three separate occasion and associated with other senior members of Al Qaeda;
was shown propaganda videos of events such as the Al Qaeda bombing of the USS Cole in Yemen in 2000, which killed 17 US sailors;
stayed in an Al Qaeda guesthouse in Kabul run by Rami bin al Shih, one of the reported planners of September 11;
told a high-ranking Al Qaeda figure and recruiter for Osama bin Laden, Abu Aubaida, that he wanted to "do some work";
met with Khaled bin Attash, an associate of Osama bin Laden and member of Al Qaeda on three occasions, where he was told that bin Laden wanted an Australian to work for him and carry out operations in Australia; and
accepted US$3500 and an airline ticket to Australia from bin Attash and discussed instructions about further contact and meetings once he had returned to Australia.

Again, the applicant does not in substance deny those allegations, admitting that he accepted "a small amount of money" from bin Attash, which he later agreed had been US$3500, ostensibly for the purpose of activities in Australia, but insists that he never had any intention of being involved in any acts of terrorism, has broken all links with extremist groups and is "no longer the same man" as he was when he became embroiled in those activities.
The respondent's fifth reason is that the applicant participated in interviews with journalists in which he made a number of significant public statements providing insights into his conduct and character (exhibit R1, pp 380 - 386) and that there was no evidence of any improper inducement in connexion with the interviews:

He had participated in jihad training with the leaders of the Indonesian militant group and listed terrorist organization Jemaah Islamiyah in which he had practised military drills and engaged in live firing before going overseas;
he wanted to fight for the Taliban;
he knew of a man named Osama bin Laden before he travelled overseas;
he saw Osama bin Laden at the training camp three times and shook his hand;
he undertook basic training which involved Kalashnikovs, light firearms and pistols and an explosives demolition course. He said, "there'd be lots of celebrations with explosions and anti-aircraft guns doofing away" and that he could "roam through the frontier with a Kalashnikov";
at the camp he met David Hicks and was "a bit annoyed that [he] wasn't the first [Australian]" at the camp;
in the context of the US counter-attack against Afghanistan following the September 11 attack, the applicant stated "I heard the stories of the bombings in Kabul and the brothers being blown to bits with arms and torsos and different body parts on the road, there is no doubt that I did go back to Bagram to fight the Americans";
in explanation of his comment to Abu Zaubaida that he wanted to "do some work", he said "I asked Abu Zaubaida if there was any possibility of somebody that I could possibly do to help because of what I had heard and been told by personal friends about what had happened in Kabul….. When I said I wanted to work to help prevent that [innocent people being killed] in any way I could because I felt that my Moslem brothers were being slaughtered". He would "do anything that [he] could to stop that";
in relation to the meeting with bin Attash, he said that bin Attash had told him, "Osama bin Laden would like an Australian white person to work for him in Australia… Would you consider going back to Australia, going to work…. You would be told of people in Australia to get in contact with". He further said that he was "sure after his comments that it was definitely involved with terrorism".

The respondent submitted that it was particularly concerning that he maintained contact with, and offered assistance to, Al Qaeda members even after he was made aware that they had been held responsible for the 9/11 attacks and it was notable that he had made public statements about wanting to fight the Americans.
The applicant maintained that there had been no weapons or ammunition at the Jihad training camps he attended in Australia; they had just used paintball guns. The ABC report had been false in that respect. It had been heavily edited and Sally Neighbour had manipulated him, such that he had no real chance to refuse. The authorities had been using him as a guinea pig to fine-tune their legislation. He had no intention of returning to Australia in the role foreshadowed by bin Attash: "I had had a gutful long before that. I sat through [it] just to get home" (id., 386). Further, the money he had accepted was not all for terror work. It was $1500 for a year's maintenance and $2000 for waiting so long (ibid.).
The respondent's sixth point was that the applicant's actions in Afghanistan had infringed s 6 of the Crimes (Foreign Incursions and Recruitment Act) 1978 (Cth) (since replaced by part 5.5 of the Criminal Code (Cth)) by entering a foreign state with intent to engage in a hostile activity in that state. Further offences had dealt with the domestic security threats posed by the return of Australians who had participated in foreign conflicts or undertaken training with extremist groups overseas.
The applicant's response was that he had been unaware of that law and that in any case he had been more guided by God's law. The Northern Alliance had been rebelling against the Taliban government, and he had not considered the legality of the matter. He agreed he had demonstrated poor judgment.
Seventhly, the respondent submitted that the applicant was not full and frank in his dealings with the Commissioner in relation to his terrorism history. The previous name he provided at the time of his application was not the name under which he was prosecuted. While the online application template only permits the insertion of one previous name, he chose not to provide his name immediately before his name at the time of the application, being the name under which he had been prosecuted.
The applicant acknowledged that he had not given the name Jack Thomas in his application but said he had informed the Firearms Registry about it on the telephone before receiving his licence.
The respondent's eighth reason was that the applicant continued to minimize his conduct in travelling overseas to fight by making statements such as that his time in Afghanistan was for "altruistic" purposes and "it is high time Australian authorities realize the value of my travelling overseas in the bringing to justice of many senior Al Qaeda leaders" due to information he provided to authorities at the time, and that he deserved 'restorative justice'.
The applicant remains of the view that he acted from altruistic motives as he wanted to do jihad overseas in order to help bring peace to Afghanistan. He had been delving into Islamist teaching as a student of life and gave 100 percent of himself to it. He did not really question what he was learning, as he trusted people. He said you have to be really careful whom you trust. He had turned against the Taliban at the picnic where a senior leader had described how a member had run over a child in his car and had left the child on the road.

The references

The applicant tendered a number of character references (exhibit A4), the first, dated 28 August 2023 being from Mr Frank Dunn, a consultant to the New South Wales TAFE system, who writes that he has been the applicant's friend for the past 10 years and can confidently attest to his clean, outstanding character. His father had held the position of police firearms safety officer at Williamstown, Victoria, for many years. Consequently Jack was familiar with handling guns from a very early age. He was brought up on a rural property where guns were a regular feature of life. Hunting is a very important cultural practice for him and he would be socially and morally crushed if he were unable to carry on that activity.
Mr Dunn is fully aware of his history before living in New South Wales. He does not use drugs or abuse alcohol and is a married man with responsibilities. He is very conscientious and safety-minded. That had been a feature of his entire working life dealing with heavy machinery. Mr Dunn had observed him at TAFE in the blacksmithing course at Ultimo take the lead in handling the equipment safely. Jack and his wife own a rural property at Capertee, New South Wales, and are planning to move there permanently to turn it into an economic concern. Crucial to that is his ability to obtain a licence to curtail the damage caused by feral animals.
Mrs Marree-Louise O'Rourke wrote on 1 September 2023 that she has known the applicant since 24 August 2020 and they were married on 28 November 2021. He is the most honest, caring and decent individual she has ever met. She herself experienced extreme domestic violence in her previous relationship, and coming out of that in 2018 had little faith in relationships at all. She was hospitalized from her injuries and at one stage when her then partner returned home intoxicated he falsely accused her of abusing him after he had fallen over. She was then summonsed to court and as he made no appearance, she had to take on a three-month AVO with no admission of guilt. When she met Jack he showed her from the very start that she had no need to fear any more. He told her straight away of his past. She had never heard of "Jihad Jack" before, but knew instinctively and from personal experience that the Jack she knew was almost certainly not the person portrayed in the documentation and the media.
He is so kind, loving and compassionate towards her and all those around him and will do anything for her children, whom he cares about very much. He is no danger to anyone and only wishes to retain his firearms licence for vermin control and recreational hunting on her acreage. He had shown great compassion to her as she suffers from fibromyalgia and when she cannot even stand up by herself, he is always there to assist her and care for her. He has stayed by her side through thick and thin and has proven to her unconditional love and what a good man he really is. Since knowing Jack she has also observed his interactions with other people in mainstream society and sees a real man of integrity, sincerity and caring towards them.
Mr Stephen Phillips has a background in Eastern medicine, including Chinese medicine, acupuncture and Shiatsu therapy, as well as training in Buddhist chaplaincy and restorative justice. He is not, however, a Western medical doctor or psychologist. His reference is based on his role as the applicant's Eastern medicine therapist. In his professional capacity he has observed Mr O'Rourke's journey over the past two years. When he initially sought treatment in 2021, he presented with widespread pain without a known physical cause, with a high level of tension and hyper- reactivity to touch, which is typical in cases of unresolved trauma. He has, however, witnessed a remarkable transformation in the applicant's physical and emotional well-being through regular treatment. He has progressed from a state of hyper-vigilance and constant pain to a place of improved physical comfort and normal sleep patterns.
Throughout their therapeutic sessions he had consistently shown a deep commitment to his healing process and had taken responsibility for his life. His primary goal is to leave behind his past and become a fully contributing and accepted member of the Australian community. He had shared with Mr Phillips the evolution of his beliefs and values over time, including transitioning from initially embracing the Moslem faith in the late 1990s to his current Christian beliefs. He had conveyed his deep struggle with the extremist ideology he encountered during his time in Afghanistan, which ultimately led to his decision to leave the region shortly before the events of September 11, 2001.
He had also disclosed the challenges he had faced, including detainment, torture and coerced admissions in Afghanistan and Pakistan. He had explained that his acquittal in the Supreme Court was due to the unreliable nature of the confessions he made while enduring torture and threats against his family. He said he would have said anything to halt the torment and protect his loved ones. Through his treatment, Mr Phillips had witnessed a profound transformation in his demeanour, which includes significant life changes such as marriage, job transitions, and a genuine commitment to letting go of his past.
The applicant's uncle Mr Les O'Rourke described how Jack and his brother had been swept up by their father Ian Thomas into the world of the outdoors and had grown to love fishing, hunting and camping. He had learned the strict guidelines governing their duties in camp, with safety around firearms being paramount. Both boys excelled at that life among their father's fellow hunting and fishing friends. Ian had always been aware of the need to control young enthusiasm with guidance, due to his involvement with the Williamstown police office as a firearms instructor. Mr O'Rourke also detailed the applicant's progress in spearfishing and firearms courses and in his membership of the Sporting Shooters' Association and other outdoors pursuits.
Mr Kim Raymond has known the applicant for more than seven years, originally meeting him when they were both undertaking a blacksmithing course at Sydney TAFE. Their involvement in the course spanned several years and he became very impressed by the applicant over time, well beyond their TAFE course. He is fully aware of Jack's background regarding his travels to Afghanistan in the early 2000s, his arrest, torture and the charges laid against him, which he believed were all ultimately dismissed in the courts.
He writes that the applicant is a very honest, positive and hard-working individual, one of the most caring, genuine and decent people he has had the pleasure of knowing. He had always displayed a very moral social conscience directly to those around him and to the wider community. He is the type of honourable man one can count on completely when in tough times and stressful situations, while keeping a cool head and acting entirely responsibly towards all around him. His positive attitude and approach are thoroughly contagious. The referees were not required for cross-examination and the statements were not challenged.

Evaluation

The respondent's first ground was that the applicant had committed an offence under the Passports Act that constituted premeditated dishonesty and tended to undermine the Australian and international passport system.
The applicant admitted the offence, explaining that the Taliban visa in his Australian passport would inevitably have resulted in his immediate arrest in Pakistan and his relocation to Guantánamo Bay for an indefinite stay. He could not seek help from the Australian Embassy because it was surrounded by troops. In the event he was arrested at Karachi airport when seeking to board a flight home.
In the turbulent conditions prevailing in that part of South Asia at that time, the rule of law was plainly not in full flower. It was the period when indefinite detention without trial became commonplace and euphemisms such as "extraordinary rendition" and "enhanced interrogation" entered English usage. Although the applicant's predicament was ultimately of his own making, he was in a desperate situation in which lawful assistance was unavailable, and so resorted to desperate measures, unsuccessfully as it turned out. His passport offence must be viewed in that context and when so viewed takes on a less serious aspect.
The respondent's second ground was that the applicant had been charged with a serious terrorism offence. Although he was acquitted of that charge, the tribunal is not prevented from canvassing the facts and circumstances (Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62]-[64]). The gravamen of the offence charged was that he had met with a senior Al Qaeda operative, Khaled bin Attash, who had been the mastermind behind the bombing of the USS Cole. From bin Attash he had received US $3500 and an airline ticket, knowing that the purpose was to obtain his assistance with terrorist incidents in Australia. He had not demurred but had accepted the money and the ticket. The respondent submitted that the episode showed that he was not naïve but on the contrary was manipulative.
The applicant agreed that his conduct had been "well beyond reckless" but insisted that he had been swept up in jihadist ideology and had acted on the naïve belief that he could help to end the Afghanistan civil war. On becoming aware of the realities on the ground, he had arranged to leave Afghanistan before 9/11 but in the ensuing confusion had accepted the money and the ticket because he had been willing to do or say anything in order to escape from the region. His predicament was unlike anything that most Australians have ever experienced and his rather devious conduct towards a major terrorist operative also takes on a less serious appearance in that light.
The respondent's third point was that the applicant had been the subject of an interim control order, following a hearing which heard evidence about his enthusiastic participation in the Al Qaeda training camp in Afghanistan, his expressed desire to go to the front to fight and his unconcealed wish to be the person who killed the leader of the Northern Alliance (Ahmed Shah Massoud, who played a key role in defeating the Soviet occupation). Also in evidence was his callous remark to the prison officer at Barwon. The AFP argued that at that time (2006) he had not broken his links with terrorist organizations, that he was vulnerable and susceptible to the beliefs of others and could therefore be groomed or exploited for nefarious purposes, making him a public safety risk.
The applicant did not deny the incidents alleged (except his alleged aspiration to kill Massoud) but stressed that he had never had any intention of participating in any terrorist acts and that his sole preoccupation had been to return to Australia. He had separated from Maryati in 2014, had no contact with her, did not know where she was or what her beliefs now were. He had renounced his Moslem faith in 2015 and was now a Christian. He was remorseful about his past and now seeks only to be a constructive member of Australian society. He is happily married to Marree and is in full-time work as a truck driver.
The matters alleged in relation to the interim control order are indeed concerning, but they date from 2006 and he says he is "not the same man" as he was back then. While that is a glib and superficial statement, it is not inconsistent with credible evidence of his changed life. People can and do change their beliefs, outlook and behaviour and the evidence of his transformed lifestyle is supported by the unchallenged character references summarized above. Those references are not mere pro-forma expressions of solidarity but go into some detail about his positive character and the journey he has taken to leave behind his Byronesque past.
The respondent's fourth ground is a list of incidents involving the applicant between March 2001 and January 2003, including his participation at the Al Farooq training camp that was run by Al Qaeda, his meeting with bin Attash and other episodes referred to above.
The applicant admits that those incidents occurred but stresses that it was never his intention to participate in any acts of terrorism in Australia, that he had long ago broken all links with extremist groups and had changed his life, now aspiring only to be a constructive member of Australian society. Those incidents took place 20 years ago and the evidence of his conduct since then, as well as the observations of his referees, supports his claim.
The respondent's fifth ground was that the applicant had given a number of interviews to journalists in which he gave details of his conduct and attitudes, including having trained in Australia with the leaders of Jamaah Islamiya with drills and weapons firing, and that after 9/11 when he became aware of the results of the US bombing of Kabul he resolved to return to Bagram to fight the Americans. He had also been approached by bin Attash who said bin Laden wanted a Caucasian representative in Australia to assist with organizing future terrorist acts. It was submitted that those statements were concerning because he had offered to help Al Qaeda after that organization had been declared responsible for 9/11 and had expressed a wish to fight at the front against the Americans.
The applicant responded that there had been no weapons or ammunition at the Australian training camps, only paintball guns, and that the ABC report had been incorrect in that respect. He had said he wanted to work to prevent innocents from being killed but had no intention of engaging in terrorism. He said he sat through the proceedings in order to return to Australia and had "had a gutful long before that". That is consistent with his evidence in relation to the grounds mentioned above and the point does not greatly add to the case for revocation.
Sixthly, the applicant had violated the Crimes (Foreign Incursions and Recruitment Act) 1978 (Cth) (subsequently replaced by the Criminal Code (Cth)) by entering a foreign state with intent to engage in a hostile activity in that state. That legislation was designed in part to combat the increased risk of domestic terrorism presented by fighters in foreign wars returning to Australia.
The applicant's response was that he had been unaware of that legislation. That is quite credible, for although the legislation received considerable publicity when it was enacted in response to attempts by foreign military contractors to recruit Australians to take part in operations on behalf of Pacific Island governments, by 2000 it was not widely discussed. Although ignorance of the law is of course no excuse, his explanation can be accepted as indicating his state of mind at the time.
The respondent's seventh ground was that the applicant had not been full and frank in his dealings with the Commissioner in relation to his involvement with terrorism. The previous name he provided in his application was not the name in which he had been prosecuted. While acknowledging that the application template permitted the insertion of only one previous name, the applicant did not give the name he had used immediately before the application. It was submitted that the Firearms Registry should not have to investigate to determine the accuracy of the information provided.
The applicant's evidence was that although in the application he had not provided the name under which he had been prosecuted, he had supplied that name to the Firearms Registry in the course of telephone calls before his licence had been issued. That explanation finds support in the evidence and reduces the weight of the point on the fitness and propriety issue.
The respondent's eighth ground was that the applicant continues to minimize his conduct by statements such as that his time in Afghanistan was for "altruistic" purposes and that the value of his travelling overseas in bringing to justice many senior Al Qaeda leaders because of the information he provided had been insufficiently recognized.
Although the applicant does not claim to have been wrongly convicted on the passport charge or that there had been no factual basis for the other charges, he does appear to believe he was not at all times fairly treated, arguing, incorrectly, that admissions he made in a television interview could not constitute a proper basis for a prosecution.
Although it is often said that persons who materially dispute a criminal conviction are lacking in remorse and contrition and should be treated as unreformed, the tribunal has held in some cases that an applicant who disputes a conviction or claims not to be less than wholly blameworthy for the offence should be allowed to say so. The question then becomes what the denial says about the applicant's record, mitigating circumstances, propensity to self-identify as a victim and the general reasonableness or unreasonableness of the claim: Busutel v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 384, [65].
While the applicant criticizes some aspects of his dealings with the authorities and the media, he does not in any general sense regard himself as a victim and freely admits the folly of his venture in Afghanistan. He stresses that his irenic fantasies, though motivated by altruism, were dashed by exposure to reality on the ground in that country and that thereafter his only preoccupation was to leave the region and return to Australia. He is wrong about the law, but he has demonstrably changed his life and any lack of insight about his conduct two decades ago is too minimal to amount to any significant risk of recidivism.
The applicant is a man aged 50 who has a conviction for a passport offence but no other criminal convictions. He held a firearms licence in Victoria for 20 years without incident and has not come under adverse notice in New South Wales for any firearms-related matter. He has no history of violence (even in Afghanistan) and none of threatening violence (except as an intending combatant in Afghanistan). He has no history of using illicit drugs, of abuse of alcohol or of mental health problems. He is in full-time employment and is in a stable and successful marriage.
He gained public notoriety as "Jihad Jack" in 2004 on his deportation from Pakistan to Australia following his travelling to Afghanistan in March 2001 to train with, and fight for, the Taliban. On his return to Australia he was charged with several terrorism-related offences and the passport offence, the outcomes of which have been described above. He later ceased all contact with jihadist circles and in 2014 separated from his religiously-married wife Maryati, who had strongly influenced him with her fundamentalist Wahhabi ideology. He has displayed no interest in Islamic extremism for 20 years, apart from two comments made while in custody in 2005.
He renounced his Moslem religion in 2015 and is now a Christian. His unchallenged referees' reports attest to his full reintegration into Australian society and his exemplary lifestyle. Some made a special point of commenting on his safety-minded attitude to firearms handling and the use of all machinery generally. There is no reason to believe that he would use or store firearms in such a way as to be a danger to the public. The evidence as a whole shows that he is now a fit and proper person to hold a firearms licence, and I so find.

The public interest

The second basis relied on by the respondent in support of licence revocation is that it would be contrary to the public interest for the applicant to continue to hold the licence. The public interest factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64]-[66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].

Respondent's grounds in relation to public interest

On the public interest issue the respondent submitted that the applicant's conviction and sentence on the passport offence did not inspire confidence that he would comply with the strict regulatory requirements placed on the holder of a firearms licence. Further, regard should be had to the need for the community to have confidence in an individual's suitability to be entrusted with firearms.
The public interest in public confidence in this instance was a strong one. The public would be quite concerned about the effectiveness of firearms regulation and public protection if a man who trained with Al Qaeda, met Osama bin Laden and other senior Al Qaeda members, served on the frontline in Afghanistan and wanted to continue to fight against the Americans following 9/11 would now be entrusted with a licence. Maintenance of public confidence in the licensing system looms large when considering the public interest in the circumstances of this case.
While the applicant relied on his reformation of character, the mere passage of time did not prove the reformation of character. The applicant held those beliefs for a period of at least 18 years and felt strongly enough about them to travel overseas and seek to engage in armed conflict. He did not renounce his beliefs on his return to Australia and had only done so relatively recently. It was concerning also that his character made him vulnerable to the influence of others, such as Maryati, who was heavily involved in jihadist ideology. His lack of candour in not initially telling the Commissioner about his former name and terrorism history also carried weight in a consideration of the public interest.
Also relevant to this issue is the respondent's ninth ground, the submission that his relationship with his family and the threats he received following renouncing his faith were concerning in the context of his background and gave rise to a risk to public safety.
He had submitted that the statements in his interview with the AFP were obtained under torture. There was no evidence of AFP officers torturing him, and indeed he said in his Four Corners interview that he was happy to see them and "could have hugged them". He appears to have meant that, having been tortured by ISI and still being under their effective control, he was apprehensive of further ill-treatment in the future if he did not confess. (That was the view of the Victorian Court of Appeal: R v Thomas [2006] VSCA 165, (2006) 14 VR 375, 497 - 503).
His conviction was set aside by the Court of Appeal also because, while the AFP had offered to obtain a lawyer for him, the Pakistani authorities had refused to permit it (id., 488). In the event, however, he mirrored most of the statements in the AFP interview in his Four Corners interview.
The respondent contended that his conduct in travelling to Afghanistan and his conduct while there showed a lack of regard for the law and public safety. The respondent pointed out that United Nations Security Council resolutions from August 1998 had expressed great concern about the continued Afghan conflict that had "sharply escalated" because of Taliban offensives in the northern parts of the country. The Security Council in 1999 strongly condemned the continued use of Afghan territory, especially in areas controlled by the Taliban, for the sheltering and training of terrorists and the planning of terrorist acts. The Security Council president in 1999 had expressed deep distress over reports indicating the involvement of non-Afghan nationals in the fighting.
Those and other resolutions depicted the international landscape at the time leading up to and when the applicant travelled to Afghanistan. The applicant's attitudes, character and prior conduct gave an indication of his future conduct. Further, his reputation as "Jihad Jack" provided an indication of public perception as to likely future conduct.

Evaluation

There are in my view several incidents and considerations that are relevant to the public interest issue in this case. Not all of them involve conduct showing the applicant himself in a negative light. They all take place, however, against the background of the applicant's history as "Jihad Jack", his quest to Afghanistan motivated by extremist religious or pseudo-religious beliefs, the ensuing incarceration and torture, the AFP interviews and the prosecutions.
While I have found that he has radically changed his life, his associations, his beliefs and his behaviour, and that there is no serious possibility that he would repeat such conduct, that background cannot be made to go away. Everyone must live with the consequences of some choices made years ago, some good and some not. But for the demonstrated turnaround in his life, his background would be more than enough basis for an adverse finding on public interest. The evidence shows, however, that his past links with terrorist organizations and individuals are no longer a guide to his likely future conduct in that respect. They can nevertheless not be ignored.
It may be recalled that the reason for the initial revocation of the applicant's licence on public interest grounds was his association with his wife Marree, who had held a firearms licence that had been revoked. That apparently occurred following the issuance of an AVO in the course of a heated relationship breakup that was allegedly obtained on the basis of false information provided by her ex-partner. There is no further evidence before the tribunal about the facts and circumstances of that case, but the reviewing delegate attached little weight to that circumstance and that is the most appropriate course of action.
There are some more pertinent matters, however. In his 2020 licence application he failed to give the Firearms Registry the name he had been using immediately before making the application, which was the name under which he had been prosecuted. He subsequently gave that name in the course of a telephone conversation before the licence issued, but his conduct had been likely to be seriously misleading. It showed that even now he can be at best careless in complying with the strict requirements of the licensing scheme on which its fair and efficient operation depends.
On 30 October 2015, he was made subject to an interim family violence order in Victoria that was later withdrawn on an undertaking by him, and in which the person protected was Maryati. The evidence for that was a police information report No. I 150344210, which is not before the tribunal.
On 14 May 2016, following a complaint by him resulting from an apparent misunderstanding over a Telstra account, he reported that he separated from Maryati in October 2015 and subsequently renounced his Moslem faith. He repeatedly told police that an unknown person or persons from the faith had made contact with him, stating that "you know what happens when you leave the faith", which he took to mean that the consequence was decapitation (event E 63872488, exhibit R1, pp 7 - 8).
On 4 September 2017, police spoke with him and Ms Aloysia Brooks at her residence in relation to a person who they both reported had verbally abused them. The individual was a friend of Ms Brooks's ex--husband David Hicks (the former Guantánamo Bay inmate) and that was the reason why the individual had attacked them in that way (E 67214587, id., 9 - 10).
Event E 72477918 (id., 11 - 12) was a complaint by the applicant on 6 October 2019 that his then employer, one Hussen [name] had threatened to bash him as he had asked for more stable work. The employer said the applicant had been retrenched for breaching the employment contract, and that it was the applicant who acted angrily towards him. In view of the conflicting versions of the event, police took no action.
An altercation described in event E 74610721 arose on 22 April 2020 when the applicant was working at a car parts warehouse (id., 13 - 14). Angela [name] was a friend from working at the company. She had been talking to the applicant about struggling with her partner Steven [name], who was being controlling. The applicant later that day received a highly abusive and threatening telephone call from a person police believed was Steven. The applicant was consequently named as the victim in a provisional apprehended violence order on 26 April 2020, which became a full order on 15 July 2020 and expired on 25 April 2022.
As recently as 28 November 2022, he told police that after he had left the religion he had been threatened by his son and ex-wife, as well as numerous other callers apparently from the Islamist community, and that was why he had changed his name and left Victoria (exhibit R1, pp 38, 41, 65).
Those incidents suggest a propensity of the applicant to become involved in potentially violent confrontations, whether as putative perpetrator or as a victim, requiring police intervention. The incident on 4 September 2017 leading to a complaint by Ms Brooks and the applicant suggests that even in comparatively recent times the applicant's former associations with persons involved with terrorism can lead to sequelae potentially involving violence. Ms Curry also pointed out that the tribunal does not have before it any expert evidence in the applicant's favour.
The misleading information he provided in connexion with his 2020 licence application is also troubling. In Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [52], the tribunal said "a person's identity is fundamental to an application [for a licence] and to providing the Respondent with relevant information upon which a decision to grant or refuse a licence may be based". Not providing the Commissioner in limine with all his previous names, particularly the one under which he was tried and convicted of a serious offence, calls into question his ability to comply with the requirements of statutory licensing scheme.
In his evidence the applicant stated that he and Marree intended to become primary producers on the Capertee (Glen Davis) property that Marree already owns. Other things being equal, that would tend to strengthen his case, as there is a public interest in law-abiding farmers and graziers having access to long arms for the protection of the environment and primary industry. It does not appear, however, that any concrete steps have been taken by the parties in that direction.
Finally, there is the matter of public confidence in the licensing system. In Kogias v Commissioner of Police [2020] NSWCATAD 297, [101], the tribunal had this to say: Legislation such as the Firearms Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an activity that not only protects the public from harm, but also helps to maintain public confidence in the licensing scheme by signalling that those whose activities do not meet the required standard will not be granted a licence or permit….
In this context the present case is an exceptional one. As the respondent contended, many members of the public would be concerned about the effectiveness of firearms regulation if a man with 11 known aliases who trained with Al Qaeda, met Osama bin Laden and other senior members of Al Qaeda, served at the frontline in Afghanistan for Al Qaeda and wanted to continue to fight against the Americans after 9/11 would now be entrusted with a firearms licence. Maintenance of public confidence in the licensing system looms large when considering the public interest in the circumstances of this case.
The events with which this case is mainly concerned now lie 20 years in the past and it is possible that a substantial portion of the public today is unaware of the story of "Jihad Jack" or has recollections of it that are based on incomplete or incorrect information. With the passing of time that story will fade into history. It may also be considered not altogether fair that the applicant's position today is prejudiced by opinions over which he has no control and which may be based on misapprehensions. But the fact remains that his notoriety resulted entirely from his own bad choices.
The totality of the evidence leads to the conclusion that it is not at present in the public interest for the applicant to continue to hold a firearms licence, and I so find. The decision under review must be affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 09 November 2023

Passports Act 1938(Cth)

Criminal Code (Criminal Code Act 1995(Cth)

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (28)