McCartney v Abdirahman-Khalif [2019] FCA 2218

FEDERAL COURT OF AUSTRALIA

McCartney v Abdirahman-Khalif [2019] FCA 2218 File number: SAD 245 of 2019

Judge: CHARLESWORTH J

Date of judgment: 22 November 2019

Date of publication of reasons: 16 March 2020

Legislation: Criminal Code Act 1995 (Cth) Div 104; ss 100.1, 102.2, 104, 104.2, 104.3, 104.4, 104.12A, 104.14, 104.28A Evidence Act 1995 (Cth) ss 75, 140, 191

Cases cited: Abdirahman-Khalif v The Queen [2019] SASCFC 133

Date of hearing: 20 November and 22 November 2019

Registry: South Australia

Division: General Division

National Practice Area: Federal Crime and Related Proceedings

Category: No Catchwords

Number of paragraphs: 84

Counsel for the Applicant: Mr A Berger and Mr P Melican

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Ms M Shaw QC with Mr J Caldicott

Solicitor for the Respondent: Caldicott Lawyers

REASONS FOR JUDGMENT SAD 245 of 2019

BETWEEN: IAN MCCARTNEY Applicant

AND: ZAINAB ABDIRAHMAN-KHALIF Respondent

CHARLESWORTH J: 1 On 22 November 2019 I made an interim control order pursuant to s 104 of the Criminal Code Act 1995 (Cth) against the respondent. The order was interlocutory in nature. An interim control order may ordinarily be made on an ex parte application. In the circumstance of this case, however, the respondent was served with the application and afforded an opportunity to be heard. I gave oral reasons for making the interim control order on the date that the order was made. The parties have since been provided with an informal written record of the reasons derived from the transcript of the oral reasons. 2 The applicant has elected to confirm the interim control order in accordance with the provisions of Div 104 of the Code. 3 At the time that the order was made it was envisaged that the confirmation hearing required to be conducted by the Code might follow in a short time frame, having regard to the need to afford the respondent procedural fairness in respect of that hearing. However, the commencement of the confirmation hearing has been adjourned more than once on the application of the respondent. As a consequence, the interim control order remains in force. 4 The applicant has requested that the Court publish written reasons for the interim control order made on 22 November 2019 and I now do so. The reasons commencing at [10] below are in substantially the same terms as the informal written record provided to the parties earlier. In the circumstances I have described, I do not consider it appropriate to make any substantive addition or alteration to them. Any amendments that have been made should be understood as intended to improve expression, without affecting the meaning of what was pronounced orally. 5 As a consequence, the reasons assume some knowledge on the part of the reader as to the content of the evidence before the Court. I do not propose to remedy that, given that it remains open to me to adopt a different view of similar evidence at the confirmation stage. 6 In giving oral reasons I referred to amended short minutes of order setting out the relief sought by the applicant. The controls sought by the applicant formed Annexure A to the minutes. The controls sought by the applicant were expressed as follows (without alterations): 1. Control 1 1.1. You are required to remain at premises: a. nominated by you within 24 hours from the time that this Interim Control Order comes into force; and b. approved in writing by the JCTT Coordinator (the specified premises), between the hours of 10:00 pm and 6:00 am (the curfew period) each day from the day on which this Interim Control Order comes into force until the day that it ceases to be in force. 1.2. You must present and identify yourself at the specified premises during the curfew period upon request by a police officer. 2. Control 2 2.1. You are required to report to a police officer every Wednesday, between 7:00 am and 7:00 pm (the reporting period), at Port Adelaide Police Station, 244 St Vincent Street Port Adelaide SA. 3. Control 3 3.1. You are prohibited from being at any of the following areas: a. within the exclusion zone shaded in yellow set out in Annexures 1 and 2 at Adelaide Airport; and b. within the exclusion zone shaded in yellow set out in Annexures 3 and 4 at Port Adelaide; and c. within 1 km of any Australian airport (beside Adelaide Airport) which has an international point of departure, or from which a person can board or charter a flight for an international destination; d. within 1 km of any Australian port (beside Port Adelaide) which has an international point of departure, or from which a person can board or charter a marine vessel for an international destination; e. inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there; f. at the residence of any person with whom, by reason of Control 11, you are prohibited from communicating or associating; g. any place in Australia outside the state of South Australia. 4. Control 4 4.1. You are prohibited from leaving Australia for any period of time while this Interim Control Order is in force. 5. Control 5 5.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing or storing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess or store documents (including documents in electronic form) or electronic media, 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. unless that material is: d. published by a 'constituent body' of the Australian Press Council; e. broadcast on Australian free to air television; f. broadcast on Australian pay television; g. shown in a commercial movie cinema; or h. broadcast on one of the following streaming services: Netflix; STAN; ABC iView; or SBS on demand. 6. Control 6 6.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing or storing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess or store documents (including documents in electronic form) or electronic media, 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 including the al-Hayat Media Centre; or g. activities of, or associated with, any 'terrorist organisation' within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth), unless that material is: h. published by a 'constituent body' of the Australian Press Council; i. broadcast on Australian free to air television; j. broadcast on Australian pay television; k. shown in a commercial movie cinema; or l. broadcast on one of the following streaming services: Netflix; STAN; ABC iView; or SBS on demand. 7. Control 7 7.1. You are prohibited from the following specified activities (including in respect of your work occupation), namely: producing or distributing documents (including documents in electronic form) or electronic media relating to: a. explosives, explosive devices, initiation systems or firing devices; b. firearms, ammunition or knives; c. anti-surveillance or counter surveillance; d. executions; e. beheading; f. suicide attacks; g. bombings; h. terrorist attacks; i. propaganda and promotional material for a terrorist organisation including the al-Hayat Media Centre; j. activities of, or associated with, any organisation that is specified as a 'terrorist organisation' for the purposes of s 102.1 of the Schedule to the Criminal Code Act 1995 (Cth). 8. Control 8 8.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: purchasing, renting or driving any vehicle which exceeds a gross vehicle mass of 4.5 tonne. 9. Control 9 9.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: undertaking paid or unpaid employment of which you have not first notified the JCTT Coordinator in accordance with Control 9.2. 9.2. In your notification to the JCTT Coordinator, you must: a. submit a written notification to the JCTT Coordinator which notifies the proposed employment, including details of the employer (including their name and place of business) and the nature of the work that will be undertaken; and b. provide any information requested by or on behalf of the JCTT Coordinator in relation to the proposed employment (including, but not limited to, information regarding persons employed by or associated with the proposed employer and information about the nature of the business and the work you would be undertaking). 10. Control 10 10.1. You are prohibited from possessing or using, or causing any person to act on your behalf to possess or use, any of these specified articles or substances, namely: a. firearms or ammunition; b. a 'prohibited weapon' within the meaning of s 6 of the Summary Offences Regulation 2016 (SA); c. any quantity of petrol exceeding 4 litres; d. any quantity of any chemical which is not consistent with reasonable domestic use. 11. Control 11 11.1. You are prohibited from communicating or associating with: a. any person incarcerated in any correctional facility; b. any person located in Turkey, Iraq or Syria; c. any of the following specified individuals: i. Daniel John CLAVELL (Date of birth: 07/07/1987); ii. Nathan John CLAVELL (Date of birth: 27/04/1998); iii. Samia HUSSAIN (Date of birth: 12/02/1998); iv. Joel Edward James CLAVELL (Date of birth: 20/02/2000); v. Joshua John CLAVELL (Date of Birth: 25/01/1989); and 12. Control 12 12.1. You are prohibited from accessing or using, any mobile telephone device other than one mobile telephone device (the permitted mobile phone), and your use of the permitted mobile phone is subject to the following conditions: a. before using the permitted mobile phone, you must present it to the JCTT Coordinator (or a police officer specified in writing by the JCTT Coordinator) for inspection; b. before using the permitted mobile phone, you must advise the JCTT Coordinator, in writing, of the following information: the International Mobile Equipment Identity number for the permitted mobile phone, the Integrated Circuit Card Identifier for the SIM card you will use with the permitted mobile phone, the telecommunication service provider which you will use with the permitted mobile phone, and the phone number to which the permitted mobile phone will be connected; c. once you have advised the JCTT Coordinator of the information required by paragraph 12.1.b above, you must not change, remove, modify or disconnect or cause any other person to change, remove, modify or disconnect on your behalf (including any employee or person acting on behalf of a telecommunications service provider) the SIM card, telecommunication service provider or phone number connected to the permitted mobile phone. 12.2. You are prohibited from causing or permitting another person to use or access the permitted mobile phone. 12.3. You are prohibited from causing or permitting another person to use or access any mobile telephone device on your behalf. 13. Control 13 13.1. You are prohibited from accessing or using any fixed or landline telephone service other than one service that has been approved in writing by the JCTT Coordinator for you to access or use. 13.2. To seek approval, you must: a. submit a written request to the JCTT Coordinator which nominates the fixed or landline telephone service; and b. provide any other information requested by or on behalf of the JCTT Coordinator for the purpose of identifying the nominated fixed or landline telephone service. 13.3. You are prohibited from causing another person to use or access any fixed or landline telephone service on your behalf. 14. Control 14 14.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, 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, the date, time and phone number called; and b. you explain the nature of the emergency which required you to access or use that public telephone. 15. Control 15 15.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any satellite telephone service. 16. Control 16 16.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any of the following websites, applications or computer programs (collectively, platforms), as the case may be: a. FaceTime b. WhatsApp c. Viber d. Telegram e. Skype f. Facebook Messenger g. Instagram h. Snapchat i. KIK j. iCall k. WeTalk l. Lync2013 m. Nimbuzz Messenger n. Whistle Phone o. Talkatone p. Discord q. Google Duo r. MagicApp s. Signal Private Messenger t. Zoiper IAX SIP VOIP Softphone u. Beejive v. Fring w. JaJah x. Line2 y. Talkatone z. Truphone aa. Twitter bb. Yahoo cc. ICQ dd. Google Talk ee. MSN Messenger ff. AIM gg. Yahoo Messenger hh. Packet8 ii. Google Hangouts. 16.2. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any Voice Over Internet Protocol (VOIP) service. 16.3. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any internet based messaging service. 16.4. However, Controls 16.3 and 16.4 do not prohibit access to or the use of: a. Facebook; or b. a website which includes an 'instant chat' function that allows a visitor to the website to send messages to, and receive messages from, the website host solely for the purpose of obtaining or providing customer service. 17. Control 17 17.1. You are prohibited from accessing or using any internet service other than the one service that has been approved in writing by the JCTT Coordinator for you to access or use (the permitted internet service). 17.2. To seek approval: a. you must submit a written request to the JCTT Coordinator which: (i) nominates the internet service provider account; and (ii) nominates the devices you will connect to the internet service (including but not limited to computers and televisions); b. provide any other information requested by, or on behalf of, the JCTT Coordinator, in relation to, or for the purpose of identifying, the nominated account and devices. 17.3. You are prohibited from causing or permitting another person to access or use the permitted internet service. 17.4. You are prohibited from causing any other person to access or use on your behalf any internet service. 18. Control 18 18.1. You are prohibited from accessing or using any electronic mail (email) account other than one account that has been approved in writing by the JCTT Coordinator for you to access or use (the permitted email account). 18.2. To seek approval: a. you must submit a written request to the JCTT Coordinator which nominates the email account; and b. provide any other information requested by, or on behalf of, the JCTT Coordinator in relation to, or for the purpose of identifying, the nominated account which you will be accessing or using. 18.3. You are prohibited from causing or permitting another person to use or access the permitted email account. 18.4. You are prohibited from causing any other person to access or use on your behalf any email account. 19. Control 19 19.1. You are prohibited from accessing or using any computer other than one computer that has been approved in writing by the JCTT Coordinator for you to access or use (the permitted computer). 19.2. To request approval you must: a. submit a written request to the JCTT Coordinator which nominates the computer; and b. provide any information requested by or on behalf of the JCTT Coordinator in relation to, or for the purpose of identifying and accessing, the nominated computer. 19.3 If the approval is granted, you must provide the JCTT Coordinator, or a police officer acting under the JCTT Coordinator's direction, the password for the permitted computer if you are requested to do so by the JCTT Coordinator or the police officer. 20. Control 20 20.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any tablet device, including but not limited to an iPad or a Samsung Galaxy Tab. 21. Control 21 21.1. You are required to consider in good faith participating in counselling or education relating to your psychological and physical wellbeing, with a suitably qualified professional, for at least 60 minutes per week. 21.2. If you agree to participate in such counselling or education you must advise the JCTT Coordinator in writing that you have commenced the counselling or education and provide the JCTT Coordinator the name and qualifications of the professional you have engaged. 22. Exemptions 22.1. You may request the JCTT approve an exemption to the requirements or prohibitions (as the case may be) specified in Controls 1.1, 2.1, 3.1.g and 11.1.b. 22.2. To request an exemption, you must: a. submit a written request to the JCTT Coordinator which: (i) identifies the Control in respect of which you seek an exemption; (ii) explains the extent to which you seek to be exempted from the Control; and (iii) explains your reason(s) for seeking the exemption; and b. provide any other information requested by, or on behalf of, the JCTT Coordinator for the purposes of determining whether to approve the exemption. 22.3. The JCTT Coordinator may grant an exemption subject to conditions specified in writing. 22.4. You must comply with all of the conditions specified in writing by the JCTT Coordinator. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect. 22.5. A request for an exemption must be made before the material time and date. 22.6. If the JCTT Coordinator has not approved an exemption by the material time and date, the request is deemed to have been refused. 23. Interpretation 23.1. In this Interim Control Order: a. Material time and date means: i. in relation to a request for an exemption to the requirement in Control 1.1. the commencement of the curfew period that is the subject of the request (and, if more than one curfew period is the subject of the request, the first of those curfew periods); ii. in relation to a request for an exemption to the requirement in Control 2.1. before the conclusion of the reporting period that is the subject of the request (and, if more than one reporting period is the subject of the request, the first of those reporting periods); iii. in relation to a request for an exemption to the requirement in Control 3.1.g. the time and date at which you wish to depart South Australia; and iv. in relation to a request for an exemption to the requirement in Control 11.1.b. the time and date at which you wish to communicate with a person located in Turkey, Iraq or Syria. b. JCTT Coordinator means a member of the Australian Federal Police performing the duties of JCTT Coordinator. c. Password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device, account, application, service, software or hardware. d. Police officer means a 'member' or 'special member' of the Australian Federal Police, as defined by the Australian Federal Police Act 1979 (Cth), or a 'police officer' within the meaning of the Police Act 1998 (SA). 7 It is not necessary to reproduce the maps referred to in Control 3.1.a and 3.1.b. 8 The order made on 22 November 2019 had the effect of imposing all of these controls, with the exception of Control 9. 9 I also referred to written submissions filed on behalf of the applicant. As will be seen, I adopted that part of the submissions concerning the construction of the provision conditioning the exercise of the power to make an interim control order. For completeness, the submissions I adopted at the interim stage are now extracted below (with citations added): A protective purpose 32. While a control order may result in some deprivation of liberty, its purpose is not punitive. Proceedings under Division 104 are civil, not criminal, in nature. It is not sought to punish the Respondent but to protect the community. 33. Donald FM described the purpose of control orders in Jabbour v Hicks [2008] FMCA 178 as follows: [8] ... it is important to note that the function of this Court is not to determine whether or not the Respondent should be punished or further punished for any of his activities. Rather, the function of this Court is to consider whether a control order should be made placing restrictions upon the activities of [the subject] and, if so, what those restrictions should be. In making those decisions, the applicable legislation provides clear guidance as to the matters to be taken into account by the Court. Punishment or further punishment is not a factor to which this Court has any regard. The matters are to be considered on what could be described as a prospective basis – what is to occur in the future so that the public is protected from a terrorist act. 34. In McCartney v EB (2019) 263 FCR 170 Wigney J noted (at [18]) that the protective purpose of the provisions in Division 104 supports a more beneficial (to the Applicant) and less restrictive construction of its provisions than would be the case if it contained penal provisions. Assessing risk 35. In Thomas v Mowbray (2007) 233 CLR 307, Gleeson CJ observed (at [9]) that '[t]he level of risk of the occurrence of a terrorist act, and the level of danger to the public from an apprehended terrorist act, will vary according to international or local circumstances.' Similarly, Gummow and Grennan JJ observed (at [92]) that: The federal judges exercising the jurisdiction conferred by the interim control order provisions will bring to their consideration of whether 'making the order would substantially assist in preventing a terrorist act' (s 104.4(1)(c)(i)) and of the particular form of an order, both matters of common knowledge, some of which we have referred to above [September 11 and other terrorist activities], and the facts and circumstances disclosed in the evidence on the particular application for an order. 'Substantially assist' 36. This application is brought, in part, on the basis that the Respondent is a potential perpetrator of a terrorist act. But even if the Court is not persuaded of this, the ICO sought may still 'substantially assist' in preventing a terrorist act. As Gummow and Crennan JJ noted in Thomas v Mowbray (at [97]) the making of a control order against someone other than the prospective perpetrator of a terrorist act may nevertheless be of substantial assistance in preventing a terrorist act. It may also 'substantially assist' in preventing provision of support for, or the facilitation of, such an act. 37. The case law that has considered the meaning of 'substantial' or 'substantially' suggests that the phrase has no fixed meaning and does not suggest a quantitative or proportional assessment (see for example Terry's Motors Ltd v Rinder [1948] SASR 167; In re Net Books Agreement 157 [1962] 1 WLR 1347). It has, however, in different contexts, been held to mean 'not trivial or minimal' (R v Lloyd [1967] 1 QB 175) or 'more than merely insubstantial or insignificant' (Secretary, Dept of Social Security v Wetter (1993) 40 FCR 22 at 29-30). In light of the protective purpose of Division 104 and the matters referred to in paragraphs [38]-[39] below, the Applicant submits that such a meaning is appropriate in construing s 104(1)(c)(i). 38. The Applicant submits that the Court does not need to find on the balance of probabilities that a terrorist act would otherwise occur before it can grant an ICO for the following reasons: 38.1. Had this been the intention it could readily have been stated. 38.2. Such a construction would rob the provisions of much of their intended protective effect. 38.3. The sorts of obligations, prohibitions and restrictions that can be contained in a control order are, by their very nature, not necessarily going to be decisive in preventing a terrorist act. 38.4. Such an interpretation of s 104.4(1)(c)(i) is consistent with how the notion of protecting the public should be interpreted in s 104.4(1)(d). 38.5. The provisions dealing with control orders can be contrasted with those dealing with preventative detention which are aimed to prevent an imminent terrorist act occurring (see s 105.1). Section 105.5(4) of the Criminal Code requires there to be reasonable grounds to suspect that the subject will engage in a terrorist act; or possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or has done an act in preparation for, or planning, a terrorist act before preventative detention can occur. If Parliament intended s 104.4(1)(c)(i) to be interpreted in a way that required a court to find that a terrorist act would otherwise occur before it could make a control order then this would not sit comfortably with the preventative detention regime which seems to be designed to deal with such a situation. 39. Certain steps can substantially assist in preventing something even though one cannot quantify the risks of it occurring with or without protective action. To pick but one illustration, ensuring aircraft maintenance workers were not intoxicated whilst on duty could properly be said to substantially assist in preventing the loss or passengers lives even though the chance of this occurring, with or without such action, would be difficult to quantify. 'Reasonably necessary' and 'reasonably appropriate and adapted' 40. In Thomas v Mowbray, Gleeson CJ explained (at [19]) the judicial function as follows: 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. 41. Gummow and Grennan JJ described (at [99]) the judicial task in deciding which controls to impose as follows: 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)). 42. Gummow and Grennan JJ went on to explain (at [103]) that what is required by the criteria of reasonable necessity and 'reasonably appropriate and adapted' is a 'sufficient connection between the desired end and the means proposed for its attainment'. In Jabbour v Hicks, for example, Donald FM (at [39]) confirmed controls which made it 'more difficult' for the person to travel for terrorist activities and 'more eas[y]' to locate him if he did so. Standard of proof and interlocutory proceedings 43. Subsection 104.4(1), which sets out the substantive matters of which the Court must be satisfied before it can make an ICO, adopts the 'balance of probabilities' as the applicable standard of proof. 44. Where circumstantial evidence is relied upon, it is sufficient that the circumstances raise a more probable inference in favour of what is alleged. It is not necessary to exclude all reasonable hypotheses to the contrary, even in respect of grave allegations of criminal conduct. The Applicant accepts that the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336 are engaged in relation to the more serious allegations he makes against the Respondent. 45. Proceedings in relation to a request for an ICO are interlocutory for all purposes, including for the purposes of s 75 of the Evidence Act 1995: s 104.28A(1).