BURLEY J:
1 This is an application by Superintendent Nicholas Read of the Australian Federal Police (AFP) for an interim control order in respect of Alo-Bridget Namoa pursuant to s 104.4 of the Criminal Code (Cth) (contained in the Schedule to the Criminal Code Act 1995 (Cth)).
2 On 5 October 2018, Ms Namoa and her co-offender Sameh Bayda, were found guilty by a jury of the offence of conspiring between 8 December 2015 and 25 January 2016 at Sydney and elsewhere to do acts in preparation for, or planning, a terrorist act, contrary to ss 11.5(1) and 101.6(1) of the Code (2015 offence). On 31 January 2019 a judge of the Supreme Court of New South Wales sentenced both to imprisonment. The term imposed upon Ms Namoa was three years and nine months commencing on 23 March 2016 and expiring on 22 December 2019: R v Bayda; R v Namoa (No 8) [2019] NSWSC 24 (Fagan J).
3 Prior to Ms Namoa's release from imprisonment, Sandra Booth, a commander in the AFP, made an application to this court for a first interim control order, which was subsequently made on 19 December 2019: Booth v Namoa [2019] FCA 2213 (Rares J) (Booth No 1). That order was confirmed to apply without variation on 3 February 2020: Booth v Namoa (No 2) [2020] FCA 73 (Rares J) (Booth No 2).
4 On 22 December 2019, Ms Namoa was released from custody and on the same day she was served with the first interim control order.
5 On 25 July 2020, Ms Namoa was arrested and charged with six counts of contravening a control order and six counts of attempting to contravene a control order, contrary to ss 104.27 and 11.1 of the Code. She was refused bail and has been remanded in custody since her arrest (second period of imprisonment). Ms Namoa has pleaded guilty to some of these counts and the remainder have been withdrawn. She is due to be sentenced next Monday, 29 November 2021.
6 On 19 December 2020, the interim control order imposed made on 19 December 2019 expired.
7 There is a prospect that Ms Namoa's sentence for the contraventions of the first interim control order will not exceed, or will not exceed by much, the time she has been remanded in custody to date, with the consequence that Ms Namoa's release into the community may be imminent. It is for that reason that the present application has been made on an urgent basis.
8 There is a two stage process for an officer of the AFP to seek and obtain an interim control order within ss 104.3 and 104.4 of the Code. First, a "senior AFP member" must obtain the written consent of the AFP Minister who, at present, is the Honourable Karen Andrews MP. Secondly, the senior AFP member must provide to the Court the documents and information required by s 104.3. The Court may make an order but only if the particular requirements of s 104.4 of the Code, to which I shall return below, have been satisfied.
9 Superintendent Read has filed an extensive affidavit in support of the present application, which I am satisfied supplies the documents and information addressing all of the requirements of s 104.3 of the Code. He has filed submissions in support of the application and provided a draft interim control order, the terms of which have been considered by the legal representatives for Ms Namoa. Ms Namoa's legal representatives, who appeared at the application today, have provided brief written submissions indicating that Ms Namoa does not oppose the grant of an interim control order. They have discussed the draft orders with the representatives of Superintendent Read and, after some limited refinements were made, accept that the terms proposed are substantially more limited than those made in the first control order.
10 For the reasons set out below, I am satisfied that it is appropriate for the interim control order to be made.
11 The four preconditions for the making of an interim control order are set out in s 104.4(1)(a)-(d). The first is that a "senior AFP member", defined in s 100.1 as being an AFP member of the rank of Superintendent or above, has requested the order in accordance with s 104.3. Superintendent Read holds the requisite rank. His request is supported by an affidavit that conforms with the requirements of s 104.3. Most particularly, it includes the information that has been supplied to the Minister, an explanation as to why (and why not) each of the obligations, prohibitions or restrictions sought should be imposed upon Ms Namoa, the history of previous requests for interim control orders and a copy of the Minister's consent.
12 The statement of facts relating to why the order should be made includes certain information about two individuals that Superintendent Read claims is confidential. He seeks a suppression order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) in order to protect the identity of those individuals. This involves the suppression of limited parts of annexures NR-03 and NR-07 of Superintendent Read's affidavit and of the confidential submissions supplied in support of the suppression order. Having regard to the matters raised, I am satisfied that a suppression order in the form sought is appropriate.
13 The second precondition under s 104.4(1)(b) is that the Court has received and considered such further information (if any) as it requires. No such information has been required, and so this precondition is not operative.
14 The third precondition is that one of the seven alternatives set out in s 104.1(1)(c) be met. Superintendent Reid relies on subsection (iv), which requires that the Court be satisfied on the balance of probabilities, that Ms Namoa has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of s 100.1). In Booth No 1 at [12] and Booth No 2 at [18] the Court found that Ms Namoa had been convicted of an offence relating to terrorism and a terrorist act. In my view that is plainly correct: see also McCartney v EB [2019] FCA 183; 263 FCR 170 at [29]-[30] (Wigney J). As Superintendent Read submits, the 2015 offence involved conspiring to do acts in preparation for a terrorist act; Ms Namoa had agreed with and expressly supported her co-offender's intention to carry out a terrorist act. The terrorist act was initially intended to be an attack on people in Sydney during the New Year's Eve festivities on 31 December 2015, which Ms Namoa encouraged. The offence also involved Ms Namoa holding a knife and Islamic State flag on behalf of her co-offender. Ms Namoa herself expressed a desire to carry out a terrorist act. There is a clear connection between the offence for which Ms Namoa was convicted and terrorism and a terrorist act. I am comfortably satisfied that this requirement has been met.
15 The fourth precondition in s 104.4(1)(d) is that:
the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
(i) protecting the public from a terrorist act; or
(ii) preventing the provision of support for or the facilitation of a terrorist act; or
(iii) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
16 Section 104.4(2) relevantly provides that for the purposes of s 104.4(1)(d), the Court must take into account, as a paramount consideration, the objects of Div 104. Section 104.1 provides:
104.1 Objects of this Division
The objects of this Division are to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for one or more of the following purposes:
(a) protecting the public from a terrorist act;
(b) preventing the provision of support for or the facilitation of a terrorist act;
(c) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
17 Section 104.4(2) also relevantly provides, as an additional consideration, the impact of the control order obligations, prohibitions or restrictions on Ms Namoa's circumstances, including financial and personal.
18 In Thomas v Mobray [2007] HCA 33; 233 CLR 307, Gleeson CJ explained the exercise involved in s 104.4(1)(d) as one involving proportionality (at [19]):
The requirement that a court consider whether each of the obligations imposed by a control order is both reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public was the subject of debate. A requirement of that kind would sometimes be described as a requirement of proportionality. Judgments about proportionality often require courts to evaluate considerations that are at least as imprecise as those involved in formulating a control order.
19 Justices Gummow and Crennan in the same case considered, at [99], in relation to each proposed obligation, prohibition and restriction:
….Section 104.4(1) requires in para (d) that each of these be measured against what is "reasonably necessary" and also against what is "reasonably appropriate and adapted" for attainment of the purpose of public protection from a terrorist act. This is weighed with the impact upon the circumstances of the person in question as a "balancing exercise" (s 104.4(2)).
20 The affidavit of Superintendent Read includes a summary of the grounds upon which the Superintendent considers that Ms Namoa presents an ongoing risk of committing, supporting or facilitating a terrorist act. The general context of the application arises from an ongoing and, in my view, justified concern explained by Superintendent Read that terrorist groups such as Islamic State remain active and have the potential to inspire terrorism around the globe.
21 More particularly, those grounds stem from the fact that Ms Namoa was found to have supported and encouraged an act of domestic terrorism in support of her extremist views of Islam, herself expressed a desire to commit a terrorist act and had possessed a knife wrapped in a Shahada flag in furtherance of her agreement with Mr Bayda to do so. In the weeks and months after her release from prison on 22 December 2019, Ms Namoa's phone was used to obtain images of persons raising their right index finger, which is a gesture known to Ms Namoa as being an "ISIS salute", and downloading an image of a flag depicting a sword logo with the Shahada symbol, which are known symbols used by the Islamic State. She has also sent numerous messages which include threats of extreme violence. Since July 2020, during her second period of imprisonment, Ms Namoa communicated with two persons who have been convicted of terrorism offences and two people with whom she had been prohibited from communicating or associating under the first interim control order. Furthermore, she admitted in about September 2020 that she had not abandoned her Islamic faith, as she had claimed in her evidence before the sentencing judge, and there is evidence to suggest that she did so at the behest of her co-accused. A more complete summary of the grounds on which the order is made are set out in Annexure B to the orders.
22 In Booth No 1, Rares J considered (at [28]) that there was at that time, December 2019, "still a real and reasonable risk that Ms Namoa remains a person about whom it is not possible conclusively to say that she is not at risk of relapsing to, or actually maintaining, the offending behaviours that led to her conviction, although…there are many positive indications that she has abandoned those behaviours". One of those positive indications was Ms Namoa's apparent reversion to Christianity: see [21]-[24]. His Honour also found that Ms Namoa "is a person who is vulnerable and, in the past, has succumbed to those vulnerabilities by adopting jihadist or fundamentalist beliefs and behaviours that resulted in her conviction" for the 2015 offence: see [31].
23 For the purposes of her bail application on 15 December 2020, Ms Namoa's representatives obtained a report by Dr Richard Furst, forensic psychiatrist, dated 11 September 2020. He agreed with the assessment made by Rares J, emphasising "the unique circumstances of Ms Namoa's offending, her emotional/intellectual vulnerabilities, her status as only one of only a handful of female terrorism-related offenders in the state of New South Wales and the relatively extreme nature of her previous interest in Jihadist/violent extremists images, propaganda and ideologies".
24 Superintendent Read submits that at the time of making the first interim control order, there were indications that Ms Namoa may have been disengaging from the extremist ideology that was the catalyst for her offending and subsequent conduct while in custody. He submits that while that may continue to be the case, those indications must be treated with caution, having regard to Ms Namoa's subsequent conduct, aspects of which I have summarised above. Superintendent Read submits that by engaging in that conduct, Ms Namoa has exposed herself to persons and material that have the capacity to have a radicalising influence on her, and that the risk of that occurring is neither remote nor fanciful having regard to the circumstances surrounding her conviction for the 2015 offence which involved her being highly influenced by a combination of Islamic State propaganda and persons with extremist views. I accept that submission.
25 I have considered each of the control orders proposed to be made. I consider that the obligations, prohibitions and restrictions set out are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act or preventing the provision of support for or the facilitation of a such an act. They represent a reduced intrusion upon Ms Namoa's liberty than was occasioned by the first interim control order and they will ensure that she is provided with the opportunity to engage positively with the community, while at the same time being capable of being monitored by the police on a more limited basis and being prohibited from engaging in behaviour and being exposed to influences which may lead her to commit or provide support for a terrorist act.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.