McCartney v EB [2019] FCA 183

FEDERAL COURT OF AUSTRALIA

McCartney v EB [2019] FCA 183 File number: NSD 2324 of 2018

Judge: WIGNEY J

Date of judgment: 30 January 2019

Catchwords: CRIMINAL LAW – control orders – application for interim control orders pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) – whether person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation or a terrorist act – whether person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country – reasonably necessary – reasonably appropriate and adapted – application granted

Legislation: Crimes Act 1914 (Cth) s 3(1) Criminal Code Act 1995 (Cth), ss 100.1, 102.2, 102.3, 104.1, 104.2, 104.3, 104.4, 117.1, 119.4(1), 119.4(5)

Cases cited: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Thomas v Mowbray (2007) 233 CLR 307

Date of hearing: 30 January 2019

Registry: New South Wales

Division: General Division

National Practice Area: Federal Crime and Related Proceedings

Category: Catchwords

Number of paragraphs: 55

Counsel for the Applicant: Mr P Melican

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Respondent: Mr M Davis of Mark Davis Legal

ORDERS NSD 2324 of 2018

BETWEEN: IAN MCCARTNEY Applicant

AND: EB Respondent

JUDGE: WIGNEY J DATE OF ORDER: 30 JANUARY 2019

THE COURT ORDERS THAT:

Interim control order 1. The Court makes an interim control order pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) in the terms set out in the Schedule to these orders. Confirmation hearing 2. List the proceeding for hearing on 8 February 2019 at 10:15am. Non-publication orders 3. There is to be no publication of the form of these orders that includes any information that might identify the Respondent, including his name, address, date of birth and the identity of his parents' neighbours. 4. Order 3 is made on the ground set out in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth). 5. Order 3 operates until further order. 6. There is to be no publication of the form of these orders that includes any information concerning the sentencing proceeding involving the Respondent in the Supreme Court of New South Wales [redacted], including: 6.1. the sentence imposed on the Respondent by the Supreme Court of New South Wales on [redacted], and 6.2. the circumstances of the offending leading to that sentence. 7. There is to be no publication of information connected to or derived from this proceeding concerning Control 7(iii)(i) in Annexure A to the Schedule to these orders. 8. Orders 6 and 7 are made on the ground set out in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth). 9. Orders 6 and 7 operate until the earliest in time of: 9.1. the conclusion of the trial of [redacted], date of birth [redacted] in the Supreme Court of New South Wales [redacted]; 9.2. the conviction of [redacted] following a plea of guilty, or 9.3. further order. Endorsement pursuant to Rule 41.06 To: [redacted] You will be liable to imprisonment, sequestration of property or punishment for contempt if: (a) for an order that requires you to do an act or thing - you neglect or refuse to do the act or thing within the time specified in the order; or (b) for an order that requires you not to do an act or thing - you disobey the order. SCHEDULE 1. The Court is satisfied on the balance of probabilities that: 1.1. The Respondent has been convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Criminal Code Act 1995 (Cth)); and 1.2. That the Respondent has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country (s 104.4(1)(c)(vii) of the Criminal Code Act 1995 (Cth)). 2. The Court is satisfied on the balance of probabilities that: 2.1. Each of the obligations, prohibitions and restrictions to be imposed on the Respondent by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of: 2.1.1. preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Criminal Code Act 1995 (Cth)); and 2.1.2. preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (s 104.4(1)(d)(iii) of the Criminal Code Act 1995 (Cth)). 3. This interim control order relates to the Respondent, EB. 4. The obligations, prohibitions and restrictions to be imposed on the Respondent by this Interim Control Order are those set out in Annexure A to this Schedule. 5. A summary of the grounds on which the order is made is set out in Annexure B to this Schedule. 6. This Interim Control Order does not begin to be in force until it is served personally on the Respondent and the Respondent is released from custody. 7. If this Interim Control Order is confirmed, the confirmed control order is to be in force for 12 months after the day on which this Interim Control Order is made. 8. The Respondent may attend the Federal Court of Australia which is located at the Law Courts Building, 184 Phillip Street, Queens Square, Sydney NSW, on 8 February 2019 at 10:15am for the Court to: 8.1. confirm (with or without variation) this Interim Control Order, 8.2. declare this Interim Control Order to be void, or 8.3. revoke this Interim Control Order. 9. The Respondent's lawyer may attend the AFP Sydney office at 110 Goulburn Street, Sydney NSW between 9:00 am and 4:00 pm, Monday to Friday in order to obtain a copy of this Interim Control Order. Annexure A Control 1 1. You are required to remain at the specified premises: i. nominated by you within 24 hours from the time that this Control Order comes into force; and ii. approved in writing by the JCTT Coordinator; between the hours of 10:00pm and 6:00am each day from the day on which the Control Order comes into force until the day that the Control Orders ceases to be in force, unless: iii. you are incarcerated in a correctional facility or otherwise in the custody of law enforcement authorities; or iv. you contact the JCTT Coordinator in writing: a. requesting an exemption to the requirements of Control 1 and b. the JCTT Coordinator approves the exemption in writing. Control 2 2. You are required to report to a member of the NSW Police Force every Monday, Wednesday and Saturday, between 6:30am and 9:30pm, at Merrylands Police Station, 15-17 Memorial Avenue, Merrylands NSW 2160, unless: i. you contact the JCTT Coordinator in writing requesting an exemption to this requirement; and ii. the JCTT Coordinator approves the exemption in writing. Control 3 3. You are prohibited from being at any of the following areas without the prior written approval of the JCTT Coordinator: i. any Australian airport which has an international point of departure, or from which a person can board or charter a flight for an international destination; and ii. any Australian port which has an international point of departure, or from which a person can board or charter a marine vessel for an international destination; and iii. inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there; iv. at the residence of any of the persons named in Control 7(iii). v. any place in Australia outside the state of New South Wales unless: a. you contact the JCTT Coordinator in writing requesting approval to travel in Australia, outside of NSW, for a specific period of time; and b. the JCTT Coordinator consents to the proposed travel in writing. Control 4 4. You are prohibited from leaving Australia for any period of time while the Control Order is in force. Control 5 5. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: i. accessing, acquiring, possessing, producing, storing or distributing documents or electronic media (including documents in electronic form), or attempting to access, acquire, possess, produce, store or distribute documents or electronic media (including documents in electronic form), which relate to any of the following: a. explosives, explosive devices, initiation systems or firing devices; b. firearms, ammunition or knives; c. anti-surveillance or counter surveillance. ii. accessing, acquiring, possessing, producing, storing or distributing documents or electronic media (including documentation in electronic form), or attempting to access, acquire, possess, produce, store or distribute documents or electronic media (including documents in electronic form), depicting or describing any: a. execution; b. beheading; c. suicide attack; d. bombing; e. terrorist attack; f. propaganda and promotional material for a terrorist organisation; or g. activities of, or associated with, the Islamic State, being the organisation listed pursuant to the Criminal Code (Terrorist Organisation – Islamic State) Regulation 2014 (Cth). unless that material is broadcast on Australian free to air television, Australian pay television or in a commercial movie cinema and has been given a classification by the Australian Office of Film and Literature Classification. Control 6 6. You are prohibited from possessing or using any of the following specified articles or substances, or causing any person to act on your behalf to possess or use any of these specified articles or substances, namely: i. firearm or ammunition; and ii. any quantity of any chemical which is not consistent with reasonable domestic use. If work-related use of chemicals would exceed reasonable domestic quantities: iii. you may seek approval from the JCTT Coordinator in writing for an exemption to the prohibition in Control 6; iv. you are prohibited from possessing or using the chemicals in question unless and until the JCTT Coordinator approves the exemption in writing; and v. the JCTT Coordinator may approve the exemption subject to conditions. Control 7 7. You are prohibited from communicating or voluntarily associating with: i. any person incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility. ii. any person located in Turkey, Iraq or Syria. iii. any of the following specified individuals: a. Abdulla AZARI (DOB 31 December 1994); b. Mehmet BIBER (DOB 15 August 1992). c. Kamal JALAL (DOB 18 February 1994); d. Omar JAWABREH (DOB 29 June 1993); e. Mahmoud SUMREIN (DOB 11 June 1990); and f. Cem TEKIRDAG (DOB 27 November 1991); g. Mohammad Junaid THORNE (DOB 10 June 1989); h. Seeyar SIDDIQI (DOB 11 April 1996); i. [redacted]; j. Oliver BRIDGEMAN (DOB 20 February 1997); k. Miassar HAMDAN (DOB 21 June 2000); l. Manar HOUSSEIN (DOB 15 October 1999), unless you contact the JCTT Coordinator in writing: a. requesting an exemption to the prohibition; and b. the JCTT Coordinator approves the exemption in writing; iv. Control 7[redacted] does not prohibit you from residing in premises that neighbour premises in which [redacted] resides. Control 8 8. You are prohibited from accessing or using any of the following specified forms of telecommunications technology or other technology, or to cause any person to access or use such telecommunications technology or other technology on your behalf: i. any mobile telephone service (including any telephone service card, subscriber identification module card (SIM card) or account) other than a service approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided: a. you nominate each mobile telephone service; and b. you provide the JCTT Coordinator with sufficient detail to identify the mobile telephone service you will be accessing or using. ii. any fixed or landline telephone service other than one that has been approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided: a. you nominate each fixed or landline telephone service; and b. you provide the JCTT Coordinator with sufficient detail to identify the fixed or landline telephone service that you will be accessing or using. iii. any public telephone except in the case of an emergency, provided that you contact the JCTT Coordinator as soon as possible after accessing or using such a public telephone and: a. provide sufficient detail to the JCTT Coordinator to identify the public telephone that you accessed or used; and b. you explain the nature of the emergency which required you to access or use that public telephone. iv. any satellite telephone service; and v. any Voice Over Internet Protocol (VOIP) service, including any software, mobile application or hardware that will facilitate a VOIP service (for example, but not limited to, 'FaceTime', 'WhatsApp', 'Viber', 'Telegram' and 'Skype'), other than one that has been approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided: a. you nominate each VOIP service, including any software or hardware that will facilitate a VOIP service; and b. you provide the JCTT Coordinator with sufficient detail to identify the service you will be accessing or using. vi. any internet based messaging service, including any software, mobile application or hardware that will facilitate the internet based messaging service (for example, but not limited to, 'WhatsApp', 'Viber' and 'Telegram') other than one that has been approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided: a. you nominate each internet based messaging service, including any software or hardware that will facilitate the service; and b. you provide the JCTT Coordinator with sufficient detail to identify the service you will be accessing or using. vii. any internet service provider account other than one approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided: a. you nominate each internet service provider account; b. that internet service provider account is operated and hosted within Australia; and c. you provide the JCTT Coordinator with sufficient detail to identify the account you will be accessing or using. viii. any electronic mail (email) account other than one approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided: a. you nominate each email account; b. the email account is operated and hosted in Australia; and c. you provide the JCTT Coordinator with sufficient details to identify the nominated account which you will be accessing or using, and ix. any computer or tablet device other than one approved in writing by the JCTT Coordinator for you to access or use, with such approval to be given provided: a. you nominate each computer and tablet device; and b. you provide sufficient detail to the JCTT Coordinator to identify the nominated computer and tablet device which you will be accessing or using. Control 9 9. You are required to consider in good faith participating in counselling or education relating to your spiritual, emotional and physical wellbeing, with a suitably qualified professional counsellor or publicly recognised religious leader, for at least 60 minutes every week. If you agree to participate in such counselling or education: i. you may nominate the suitably qualified professional counsellor or religious leader with whom you will undertake the counselling or education; ii. if you do not nominate a suitably qualified professional counsellor or religious leader, or if the JCTT Coordinator does not consider the person you have nominated is suitably qualified or appropriate to provide the counselling or education, the JCTT Coordinator will nominate such a person for your consideration; and iii. you may change your counsellor or religious leader at any time to another person. Annexure B 1. Having regard to the matters set out in both the 'Statement of facts relating to why the order should be made' and the 'Statement of facts relating to why the order should not be made', the grounds on which the order should be made can be summarised as follows. 2. [redacted]. 1 3. [redacted]. 2 [redacted]. 3 4. [redacted]4 [redacted]. 5 5. [redacted]. 6 [redacted] 6. [redacted]: 6.1. [redacted]. 7 [redacted].8 6.2. [redacted] 7. EB is heavily susceptible to the influence of others who hold extremist views, as well as the influence of extremist propaganda. He has accepted that is the case, and that being re-exposed to such persons may cause him to return to an extremist ideology. 9 (That is not to assume or accept that he has, in fact, genuinely renounced that ideology). 8. EB has many associates with whom he discussed extremist ideology around the time of his offending, and who the AFP believes continue to hold extremist views and who have links with other extremists, including persons convicted of terrorism-related offences. 10 9. In view of: 9.1. the nature and circumstances of EB's offending and the extreme ideology he held at the time of his offending; 9.2. [redacted]; 9.3. EB's history of susceptibility to being influenced by Islamic extremists and extremist propaganda; 9.4. the large number of associates of EB who the AFP believes hold extremist views and who have links with other extremists, 9.5. there is a real risk that EB, once released from custody, and in the absence of appropriate controls, will engage in similar conduct to that for which he has been convicted – namely, supporting or facilitating the engagement in a hostile activity in a foreign country. 10. The AFP does not anticipate EB would, himself, commit a terrorist act. However, the matters set out in paragraphs 9.1 to 9.4 above indicate that there is a real risk that EB, once released from custody, and in the absence of appropriate controls, will direct his efforts to supporting or facilitating a terrorist act. The AFP's experience in recent years is that as more and more Islamic extremists are prevented from travelling to foreign conflict zones due to their passports being cancelled, the risk of those persons shifting their focus to domestic terrorist acts increases. For example: 10.1. Abdullah Chaarani and Ahmed Mohamed, had their passports cancelled in 2015. They subsequently undertook acts in preparation for a terrorist act together with Hamza Abbas (who never held an Australian passport), intended to be carried out in Melbourne's central business district over the Christmas period in 2016, for which they were convicted in 2018. These preparations were motivated by support for Islamic State. 10.2. Hassan Khalif Shire Ali had his passport cancelled in 2015. On 9 November 2018, he carried out a terrorist attack in Bourke Street, Melbourne, which included him setting fire to a vehicle and stabbing three people, one of whom died from his injuries. The Islamic State has claimed responsibility for this attack online. 10.3. Milad Atai was refused a request for a renewed Australian passport in 2014. In November 2018 he was convicted of aiding and abetting a terrorist act, being the fatal shooting of Curtis Cheng outside New South Wales police Headquarters and offences relating to being a member of Islamic State and the organisation of funding and support for Islamic State. Atai was part of an online 'WhatsApp' closed chat group where he and others shared views and discussed ideas supportive of Salafi Islam and the Islamic State. 10.4. Agim Kruezi intended to travel to Syria in 2014 to join in the fight against the Assad regime. Following the cancellation of his passport in 2014, he instead used the money set aside for his trip to Syria to plan an attack on Australian soil in a public place with the intention to die as a martyr in that attack. In doing so, he contemplated attracting and attacking law enforcement officers. He was subsequently convicted of making acts of preparation for a terrorist attack and making preparatory acts for incursion into a foreign state. 10.5. Omarjan Azari's passport was cancelled in 2013. He was subsequently convicted of offences of attempting to make funds available to Islamic State and committing an act in preparation for or planning a terrorist act. The latter conviction related to a phone conversation during which he discussed a plan for a future terrorist act or acts to be committed in Australia, namely the killing of random members of the public, with a senior Australian figure in Islamic State who was in Syria or Iraq at that time. 11. These acts are consistent with directions given by the Islamic State to their supporters in the West to kill non-Muslims in Western countries. In September 2014, a senior leader of Islamic State, Sheikh Abu Muhammad Al-Adnani Al-Shami issued a 'fatwa' or religious degree entitled 'Your Lord is Forever Watchful', which urged supporters not to let 'this battle pass you by wherever you may be' and to '[k]ill the disbeliever whether he is civilian or military'. 12. The change in the threat environment is such that there is a real risk that, as an alternative to seeking to support or facilitate a person travelling to Syria or Iraq to engage in a hostile activity, EB would, in the absence of appropriate controls, re direct his focus and efforts on supporting or facilitating a domestic terrorist act. 13. The obligations, prohibitions and restrictions set out in the proposed interim control orders will ensure EB: 13.1. is provided with the opportunity to engage positively with the community (through employment, religious observation, counselling and education); 13.2. is capable of being monitored by police during his reengagement with the community; and 13.3. is prohibited from engaging in those behaviours, and being exposed to those influences, which may lead him to provide support for or facilitate a terrorist act or the engagement in a hostile activity in a foreign country, and thereby reduce the risks outlined above. 14. The interim control order should be made notwithstanding the matters set out in the 'Statement of facts relating to why the order should not be made', for the following reasons: 14.1. First, while EB has made statements suggesting he no longer holds an extreme or radical ideology, self-reporting of that kind should be treated with caution. This is because his engagement with extremist ideology was not fleeting but, rather, it was a pervasive and fundamental aspect of his life. In particular, EB was radicalised to the point where he not only consumed, but also created and propagated, significant amounts of extremist material, and his radicalised ideology led him to actively engage with a number of individuals in an effort to facilitate or encourage them joining the Islamic State. Another reason for treating EB's statements with caution is the fact that, as recently as October 2018, EB has been in possession of Salafist texts, including texts recently delivered to EB by 2 of his associates. 11 While the mere possession of such texts, in isolation, might not be concerning, EB's possession of them must be considered in the context of the extreme and Salafi-inspired ideology he held during the time of his offending, and it does raise doubts as to whether he has truly abandoned a Salafi-inspired religious narrative. Furthermore, the fact that EB's associates delivered some of these books to him illustrates the risk that he will be subject to negative influences upon his release from custody. 14.2. Secondly, while ASIO has assessed EB likely does not currently hold an extremist ideology supportive of politically motivated violence, and that some ASIO information indicates he has moderated his views since his incarceration, the proposed controls are, collectively, directed at preventing EB from being re-exposed to the radicalising influences which gave rise to his previous offending, enabling police to effectively monitor EB's conduct and behaviour and assisting EB to avoid situations where he may re-offend. If EB is re-exposed to radicalising influences, there is a very real risk he will provide support for or facilitate a terrorist act or the engagement in a hostile activity in a foreign country. In this context, it is important to note that ASIO acknowledges that EB likely remains vulnerable to the influence of his extremist former associates and ASIO assesses those associates are highly likely to have an adverse influence on his ideology. 14.3. Third, while the JCTT has no information that EB presently wishes to, himself, undertake a terrorist attack or travel to join a terrorist organisation, the ultimate concern underpinning the application for an interim control order is the risk that EB will, upon his release, be exposed to radicalising influences which will cause him to support or facilitate a terrorist act or the engagement in a hostile activity in a foreign country ¬– not that he will, himself, undertake a terrorist attack or travel to join a terrorist organisation. Furthermore, while the JCTT has assessed that EB is unlikely to have credible overseas terrorist contacts, this would not present a significant hurdle to him supporting or facilitating the engagement in a hostile activity in a foreign country should he wish to do so (and it would prevent no hurdle to EB supporting or facilitating a domestic terrorist act). Having regard to the background and connections of EB's associates, as well as his increased notoriety based on his conviction, EB could readily establish overseas contacts who could assist in him facilitating others to engage in a hostile activity in a foreign country. Furthermore, he could support such activity even without such contacts. Finally, while the JCTT has assessed that EB, in the short to medium term, is unlikely to re-offend, that is based on an assessment that EB's intention during that time will be to avoid law enforcement scrutiny. The making of an interim control order will have the very effect of facilitating and enabling comprehensive law enforcement scrutiny of EB, such that he will be far less inclined to reoffend. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.