Federal Court of Australia Booth v Khazaal [2020] FCA 1241 File number: NSD 859 of 2020 Judgment of: WIGNEY J Date of judgment: 26 August 2020 Catchwords: CRIMINAL LAW – control orders – application for interim control orders pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) – where person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation or a terrorist act – whether proposed orders reasonably necessary – whether proposed orders reasonably appropriate and adapted – application granted Legislation: Criminal Code Act 1995 (Cth) ss 100.1, 101.5(1), 102.1(1), 104.1, 104.2(3), 104.3, 104.4, 104.4(1), 104.4(1)(a), 104.4(1)(b), 104.4(1)(c)(iv), 104.4(1)(d)(i), 104.4.(1)(d)(ii), 104.4(1)(d)(iii), 104.4(2), 104.4(3) Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG, 37AG(1)(a), 37AG(1)(b), 37AG(1)(c) Cases cited: Booth v Kaya [2020] FCA 25 McCartney v EB (2019) 263 FCR 170 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Thomas v Mowbray (2007) 233 CLR 307 Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 73 Date of hearing: 18 August 2020 Counsel for the Applicant: Mr D G Staehli SC with Mr T Glover Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr C Parkin Solicitor for the Respondent: Lawyers Corp Pty Ltd ORDERS NSD 859 of 2020 BETWEEN: SANDRA BOOTH Applicant AND: BELAL SAADALLAY KHAZAAL Respondent order made by: WIGNEY J DATE OF ORDER: 26 august 2020 THE COURT ORDERS THAT: Interim control order 1. An interim control order be made pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) in the terms set out in the Schedule to these orders. Non-publication order 2. The publication or disclosure of the following information be prohibited: 2.1 The contents of 'The Provisions on the Rules of Jihad', as found in: 2.1.1 Paragraphs 176-197 of the Statement of facts of relating to why the order should be made, at Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 116 to 125; 2.1.2 Annexure 97 of the exhibit to the Statement of facts relating to why the order should be made at Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 2622 to 2728, except page 2628 (the 'Introduction'); 2.1.3 Paragraph 130 of the Affidavit of Sandra Booth, at pages 26-27; 2.2 The name of the person referred to in the following parts of the evidence, as well as the facts relating to that person's offending, the name of the victim of his offending, the name of the victim's father, and any information that would tend to disclose the identity of any of those persons: 2.2.1 Paragraphs 225, 350-352 and the heading preceding paragraph 350 and footnotes 351-353 and 368 of the Statement of facts of relating to why the order should be made, at Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 132, 153 and 155; 2.2.2 Annexures 105, 191 and 193 of the exhibit of the Statement of facts of relating to why the order should be made, at Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 3042 to 3047, 3515 to 3529 and 3544 to 3551; 2.2.3 The names of the annexures 105, 191 and 193, as they appear in the List of Annexures to the Statement of facts of relating to why the order should be made, at Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 169 and 174; 2.2.4 Paragraph 11.1(f)(xiii) of the draft control order at Annexure SB-01 of the 5 August 2020 affidavit of Sandra Booth, at page 55; and 2.2.5 Paragraphs 229-233 of the Affidavit of Sandra Booth and the heading accompanying this section of the affidavit, at page 45. 2.3 The following information in the interim control order: 2.3.1 The address at which the Respondent is required to reside as referred to in Control 2.1; 2.3.2 The Respondent's telephone number as referred to in Control 13.1; 2.3.3 The names of the persons referred to in Control 11.1(e)(ii). 3. Order 2 is made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the grounds set out in subss 37AG(1)(a), (b) and (c) of that Act. 4. Order 2 operates until further order. 5. Order 2 does not prevent disclosure of any information in the judgment of this Court, or the disclosure of information to and between the following people for the purposes of these proceedings or the monitoring or enforcement of compliance with the interim control order: 5.1 The presiding judge and necessary staff of this Court; 5.2 Officers and employees of agencies that are members of the Joint Counter Terrorism Team, and legal representatives of those agencies; 5.3 The Respondent and his legal representatives; 5.4 Officers and employees of any State, Territory or Commonwealth law enforcement, security or intelligence agency, including but not limited to NSWPF, ASIO and ACIC; 5.5 NSW Corrective Services; 5.6 Any witness briefed by either party in these proceedings. Confirmation hearing 6. The day on which the Respondent may attend Court for the Court to either confirm (with or without variation) the interim control order, or declare the interim control order to be void, or revoke the interim control order, is 30 November 2020 at 10.15 am and the matter is listed for further hearing at that date and time. Case management hearing 7. The matter is listed for a case management hearing on 2 September 2020 at 9.15 am. Endorsement pursuant to Rule 41.06 To: Belal Khazaal 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. Date: 26 August 2020 SCHEDULE (1) This interim control order relates to the Respondent, Belal Khazaal. (2) The Court is satisfied on the balance of probabilities that 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)). (3) The Court is satisfied on the balance of probabilities that 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: 3.1 protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Criminal Code Act 1995 (Cth)); 3.2 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 3.3 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)). (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, Level 17, 184 Phillip Street, Queens Square, Sydney, NSW 2000, on 30 November 2020 for the Court to either: 8.1 confirm (with or without variation) this Interim Control Order; or 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 Australian Federal Police Sydney office at 110 Goulburn Street, Sydney, NSW 2000 between 9:00 am and 4:00 pm, Monday to Friday in order to obtain a copy of this Interim Control Order. ANNEXURE A ANNEXURE B ANNEXURE 1 ANNEXURE 2 ANNEXURE 3 ANNEXURE 4 ANNEXURE 5 ANNEXURE 6 ANNEXURE 7 Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT WIGNEY J: 1 On 10 September 2008, the respondent, Mr Belal Saadallay Khazaal, was convicted of an offence against s 101.5(1) of the Criminal Code Act 1995 (Cth). He was sentenced to a term of imprisonment of 12 years with a non-parole period of 9 years. An appeal by Mr Khazaal against his conviction was allowed by the Court of Criminal Appeal of the Supreme Court of New South Wales (CCA); however, the High Court of Australia allowed an appeal against that judgment. Mr Khazaal's appeal against the sentence imposed on him was subsequently dismissed by the CCA. The term of imprisonment imposed on Mr Khazaal will expire on 30 August 2020. 2 The essence of the offence committed by Mr Khazaal was that he "[made] a document connected with assistance in a terrorist act, knowing of that connection". The document that Mr Khazaal made was an electronic book titled "Provisions on the Rules of Jihad: Short Judicial Rulings and Organizational Instructions for Fighters and Mujahideen Against Infidels" (the book). The book included advice on techniques of assassination and listed categories of targets for assassination, including holders of public office in a number of countries, including Australia. 3 The applicant, Ms Sandra Booth, is a member of the Australian Federal Police (AFP) who holds the rank of Commander, Counter Terrorism Enduring Risk Investigations. That is a rank above the rank of Superintendent. On 5 August 2020, Commander Booth filed an originating application in this Court which sought, amongst other things, an interim control order in relation to Mr Khazaal pursuant to s 104.4 of the Code. 4 Division 104 of the Code provides for the making of orders, called control orders, which impose obligations, prohibitions and restrictions on a person for the purpose of protecting the public from a terrorist act, preventing the provision of support for, or the facilitation of, a terrorist act and preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country. The making of an interim control order is, in effect, the first critical step in the making of a control order. Once an interim control order is made and served, it falls upon the applicant to approach the Court for confirmation of the order. 5 There is a degree of urgency in the application. That is because Commander Booth has requested that an interim control order be made prior to the expiry of his sentence of imprisonment so that the controls will apply to Mr Khazaal upon his release from custody on 30 August 2020. 6 Mr Khazaal does not oppose the making of an interim control order. It is nevertheless necessary for the Court to be satisfied that the statutory preconditions for the making of the interim control order have been satisfied. There is also a dispute between the parties concerning the form of the interim control order that should be made. That dispute concerns the precise nature and extent of some of the obligations, prohibitions and restrictions to be imposed on Mr Khazaal by the interim control order. The question or issue at the heart of that dispute is what obligations, prohibitions and restrictions are reasonably necessary and reasonably appropriate and adapted for the purpose of, relevantly, protecting the public from a terrorist act, or preventing provision of support for or the facilitation of a terrorist act. 7 For the reasons that follow, I am satisfied that all of the preconditions in the Code for the making of an interim control order have been satisfied and that an interim control order should be made. As for the form of the order and the precise terms of the obligations, prohibitions and restrictions to be imposed on Mr Khazaal, the parties have sensibly and constructively conferred about the appropriate form of the order. That resulted in a broad measure of agreement. The areas of dispute or contest were ultimately fairly narrow and are addressed and resolved later in these reasons. PRECONDITIONS FOR THE MAKING OF AN INTERIM CONTROL ORDER 8 There are effectively four preconditions for the making of an interim control order pursuant to s 104.4(1) of the Code. First precondition – s 104.4(1)(a) of the Code 9 The first precondition is that a "senior AFP member" has requested an interim control order in accordance with s 104.3 of the Code: see s 104.4(1)(a) of the Code. There is no issue concerning this precondition. It is clear from the evidence before the Court that Commander Booth is a senior AFP officer, as defined in the Code, and that she has requested an interim control order in accordance with s 104.3 of the Code. 10 An affidavit of Commander Booth has been filed and read without objection. That affidavit establishes that each of the requirements in s 104.3 of the Code has been satisfied. Those requirements include, relevantly and in summary, that the Court has been given: information for the request which is sworn or affirmed by the AFP member; the documents and information that were required by s 104.2(3) to be given to the "AFP Minister" (as defined) in order to seek the AFP Minister's consent to request an interim control order; and a copy of the AFP Minister's written consent as required by s 104.2 of the Code. The documents that were required to be given to the AFP Minister pursuant to s 104.2(3) include, relevantly, a draft of the interim control order, a statement of the facts relating to why the order should be made, a statement of the facts of which the AFP member is aware relating to why the order should not be made and information about the person's age. All of those documents have been provided to the Court as annexures to Commander Booth's affidavit. Second precondition – s 104.4(1)(b) of the Code 11 The second precondition is that the Court has received and considered such further information (if any) as the Court requires: s 104.4(1)(b) of the Code. That precondition was not applicable to the particular circumstances of this case because the Court did not require any further information. Third precondition – s 104.4(1)(c) of the Code 12 The third precondition is that the Court is satisfied on the balance of probabilities that the making of the interim control order would either substantially assist in preventing a terrorist act, or that the person against whom the interim control order is sought had engaged in certain conduct, or had been convicted of certain types of offences. Relevantly for present purposes, the s 104.4(1)(c) requirement can be met if the Court is satisfied on the balance of probabilities that Mr Khazaal has been convicted of an offence relating to terrorism, a terrorist organisation (within the meaning of s 102.1(1)) or a terrorist act (within the meaning of s 100.1). 13 As has already been noted, Mr Khazaal was convicted of an offence of making a document connected with assistance in a terrorist act, contrary to s 101.5(1) of the Code. The expression "terrorist act" is defined in fairly detailed terms in s 100.1 of the Code. It is unnecessary for present purposes to consider the terms of that definition. That is because one of the elements of the offence committed by Mr Khazaal is that the document made by him was connected with assistance in a terrorist act. It may readily be accepted that such an offence is an offence "relating to" a terrorist act, particularly given that the words "relating to" have been held to have a wide operation and to generally require little or no more than that there be some connection or association between the things in question: McCartney v EB (2019) 263 FCR 170 at [31]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [87]. Here, the things in question are the offence committed by Mr Khazaal, which includes as an element that the document created by him was connected with assistance in a terrorist act, and a "terrorist act". There is self-evidently a connection between those two things. Fourth precondition – s 104.1(1)(d) of the Code 14 The fourth precondition for the making of an interim control order is the precondition set out in s 104.4(1)(d) of the Code, which provides as follows: 104.4 Making an interim control order (1) The issuing court may make an order under this section in relation to the person, but only if: … (d) 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. 15 Section 104.4(2) of the Code sets out a number of relevant considerations that the Court must have regard to in determining whether each of the obligations, prohibitions and restrictions to be imposed on the person the subject of the order is reasonably necessary, and reasonably appropriate and adapted, for the relevant purposes. It relevantly provides as follows: (2) For the purposes of paragraph (1)(d), in determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account: (a) as a paramount consideration in all cases—the objects of this Division (see section 104.1); and (b) … (c) as an additional consideration in all cases—the impact of the obligation, prohibition or restriction on the person's circumstances (including the person's financial and personal circumstances). 16 Section 104.4(3) provides that the Court "need not include in the order an obligation, prohibition or restriction that was sought by the senior AFP member if the court is not satisfied as mentioned in paragraph (1)(d) in respect of that obligation, prohibition or restriction". 17 In Thomas v Mowbray (2007) 233 CLR 307, Gleeson CJ explained the exercise involved in s 104.4(1)(d) of the Code as one involving proportionality. His Honour said (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. 18 Gummow and Crennan JJ considered that the precondition in s 104.4(1)(d) of the Code involved a balancing exercise. Their Honours said (at [99]): Section 104.4(1) requires in [paragraph] (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)). (Footnote omitted.) 19 It is worth noting that those passages from Thomas v Mowbray concerned orders which were said to be for the purpose of protecting the public from a terrorist act, that being the purpose set out in s 104.4(1)(d)(i) of the Code. The basis of Commander Booth's application for interim control orders in relation to Mr Khazaal was that the interim control order was reasonably necessary, and reasonably appropriate and adapted, for the purpose of not only protecting the public from a terrorist act, but also, or alternatively, preventing the provision of support for or the facilitation of a terrorist act, and or alternatively, preventing the provision of the support for or the facilitation of the engagement in a hostile activity in a foreign country, as provided in ss 104.4(1)(d)(ii) and (iii) of the Code. The same principles no doubt apply to those subparagraphs. 20 Mr Khazaal effectively conceded, or at least did not dispute, that the Court could be satisfied, on the balance of probabilities, that some of the obligations, prohibitions and restrictions sought by Commander Booth were reasonably necessary and reasonably appropriate and adapted for the purpose of either protecting the public from a terrorist act, preventing the provision of support for or the facilitation of a terrorist act, or preventing the provision of the support for or the facilitation of the engagement in a hostile activity in a foreign country. He therefore effectively conceded that an interim control order could and should be made. He submitted, however, that some of the obligations, prohibitions and restrictions sought by Commander Booth should not be included in the interim control order because they were not reasonably necessary or reasonably appropriate and adapted for any of the s 104.4(1)(d) purposes. He also submitted that some of the obligations, prohibitions and restrictions sought by Commander Booth should only be made if they were amended or varied in certain respects. 21 The parties engaged in some constructive discussions both before, during and shortly after the hearing of the application. In the end result, the areas of disagreement concerning the scope and form of the interim control order were fairly narrow. THE PROPOSED interim control order AND PROPORTIONALITY 22 As has already been noted, the Court must be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions in the proposed interim control order is "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 either a terrorist act or the engagement in a hostile activity in a foreign country: s 104.4(1)(d) of the Code. The Court is required to evaluate and form a judgment as to the proportionality of the proposed obligations, prohibitions and restrictions. That generally involves determining what obligations, prohibitions and restrictions may be necessary and appropriate, in all the circumstances, to secure the protective and preventative object of the order and weighing or balancing that consideration against the impact of those obligations, prohibitions or restrictions on the person who is to be subject to them. It is clear from s 104.4(2), however, that the protective and preventative object is the "paramount" consideration. 23 The starting point in determining whether the proposed obligations, prohibitions and restrictions are proportionate is to determine the degree or extent of the risk that the person against whom the order is to be made would or may, if not subject to obligations, prohibitions or restrictions, engage in a terrorist act, or provide support for or facilitate a terrorist act or the engagement in a hostile activity in a foreign country. That will, to a large extent, depend on the nature and circumstances of the offence committed by the person, as well as their conduct and demeanour and the extent of any demonstrated contrition and rehabilitation since their conviction. Where, as here, the application is supported by opinion evidence concerning the extent of the risk posed by the relevant person, and where that evidence is given by someone as experienced and qualified in relation to terrorism offences and offenders as Commander Booth, obviously considerable weight must be given to that opinion evidence unless there is some good reason why it should not be afforded that weight. 24 Needless to say, the offence committed by Mr Khazaal was a very serious offence. In short summary, he published a book that contained reasons for fighting "infidels", including that "it is permissible to kill infidels because of their atheism". The book identified and discussed the conditions for, and methods of, assassination and noted that the targets for assassination included "[h]olders of key positions in the original countries of atheism". Australia was said to be one of the countries of relevance in that regard. Commander Booth expressed the view that the book was reflective of Mr Khazaal's ideology. 25 There was also voluminous evidence in, and annexed or exhibited to, Commander Booth's affidavit concerning Mr Khazaal's extremist ideology and his ability to influence others. It is unnecessary, for present purposes, to discuss that evidence in detail. It included, in short summary, evidence concerning Mr Khazaal's participation in the publication of a magazine which was said to be the "preferred" magazine of Mujahideen organisations and to include first hand interviews and accounts of jihadi and Mujahideen activity, evidence concerning statements that Mr Khazaal made to the Australian Security Intelligence Organisation (ASIO) which suggested that he held extreme views and that he associated with people of security concern, and evidence which suggested that Mr Khazaal maintained an interest in extremist ideology while in prison. 26 Commander Booth's conclusion concerning the risk posed by Mr Khazaal was as follows: The risk [Mr Khazaal] poses to the community of supporting or facilitating a terrorist act in Australia or overseas, or supporting or facilitating the engagement in a hostile activity in a foreign country, is not a matter which is capable of precise quantification. Rather, it is a matter of professional judgment, having regard to a large number of potential variables and based on professional experience of the kind described earlier in my affidavit. In forming my opinion as to the risk posed by [Mr Khazaal], I have had regard to all of the matters set out in paragraphs 120 to 155 above. Based on my experience as set out in paragraphs 25 to 60 above and the information provided to me as set out in paragraph 120 above, in my opinion, [Mr Khazaal] poses a risk to the community of supporting or facilitating a terrorist act in Australia or overseas, or supporting or facilitating the engagement in a hostile activity in a foreign country. The potential consequences if this risk materialises are very serious. This is particularly so having regard to the ability of lone offenders to carry out successful terrorist attacks and cause serious damage and loss of life without requiring significant knowledge, resources or sophisticated equipment. 27 Mr Khazaal submitted, in effect, that Commander Booth's conclusion was overstated and that he in fact posed no risk to the community. In his submission, the impact that the proposed obligations, prohibitions and restrictions would have on his circumstances had to be considered in that context. 28 As for his conviction, he pointed out that the offence arising from the publication of the book was committed many years ago and that he had served the entirety of his sentence for that offence. More significantly, he noted that in a statement provided to the Attorney-General in 2019 in support of a parole application, he had stated: "I reject the contents of the book that led to my conviction and now fully appreciate the possible consequences and danger of its contents". 29 In relation to his involvement in publishing the magazine, Mr Khazaal submitted that the evidence indicated that the subject matter of the articles in the magazine that he was said to have participated in publishing involved events and circumstances that occurred over 17 years ago. There was also no suggestion that he was the author of those articles. As for the evidence concerning the statements he was said to have made to ASIO, Mr Khazaal submitted, in effect, that little weight should be given to that evidence as the source and provenance of some of the relevant reports was unclear and the reports themselves do not include a verbatim account of what he said, but instead expressed the conclusions of the unnamed author. Other intelligence reports, in Mr Khazaal's submission, revealed his willingness to cooperate and maintain contact with his case officer. 30 Finally, as for his conduct and demeanour during his imprisonment, Mr Khazaal pointed out that he had twice been granted bail by judges of the Supreme Court of New South Wales, both of whom found, either expressly or implicitly, that he posed no risk to the community. He also again relied on the statement he provided to the Attorney-General in 2019 in which he stated that he condemned and rejected "Al-Qaeda and all like organisations, their ideologies, teachings, and actions" and that he repudiated all "supportive statements" that he had made about Al-Qaeda in the past. He also undertook or maintained, in that statement, that he would not "re-offend in any way if released to parole" and that he would not "encourage, promote, or support any kind of religiously motivated violence or terrorism in the community if released to parole". 31 There is some merit in some of Mr Khazaal's submissions. While his conviction of a serious terrorism-related offence and some of his past actions and utterances are no doubt matters of considerable concern and provide a basis for Commander Booth's opinions and conclusion, Mr Khaazal's more recent emphatic and unequivocal renunciation of his past allegiances and ideological attachments cannot be ignored and provide a basis for a more optimistic outlook. 32 That said, Mr Khazaal's recent change in attitude has yet to be tested outside the confines of the prison environment. The statements he made to the Attorney-General in the context of his parole application cannot be uncritically accepted without question. Perhaps more significantly, weight must undoubtedly still be given to Commander Booth's opinions, based as they are on her considerable experience and knowledge in the area and the voluminous evidence to which she had access. It should also be noted that amongst the voluminous material referred to and relied on by Commander Booth is a very recent psychological assessment by a forensic psychologist. In short summary, Mr Khazaal was assessed as having a low to medium range risk of reoffending, though it was not suggested that there was a risk of Mr Khazaal committing a terrorist act himself. 33 In all the circumstances, it cannot be accepted that Mr Khazaal presents no risk. The weight of the evidence and Commander Booth's opinions effectively compels the Court to proceed on the basis that there remains a material risk that, unless subject to appropriate obligations, prohibitions and restrictions, Mr Khazaal may engage in conduct involving the support for or facilitation of a terrorist act, or the support for or the facilitation of the engagement in a hostile activity in a foreign country. Were it otherwise, there would be no sound basis for making an interim control order. 34 With that finding in mind, it is necessary to turn to the precise obligations, prohibitions and restrictions that are sought to be included in the interim control order. 35 The proposed interim control order contains 19 separate "controls", though each of those controls contains a number of subparagraphs. For example, control 1 in fact includes controls 1.1 through to 1.8. There is also a section of the proposed order which includes an exemption (controls 20.1 to 20.6) and an interpretation section (control 21.1). 36 As a result of the constructive engagement between the parties, there was ultimately only a dispute concerning the following proposed controls: control 2.1, control 6, control 7, control 11.1(e)(ii) and (f)(iii) and control 16.8. There was also a dispute concerning the terms of the exemption provision in control 20 and one of the definitions contained in control 21. Before addressing and determining those areas of dispute, I should emphasise that I have given careful consideration to all of the undisputed controls so as to satisfy myself independently that they are reasonably necessary and reasonably appropriate and adapted to achieve the protective and preventative objectives referred to in s 104.1 and s 104.4(d) of the Code. I am so satisfied. Proposed control 2.1 37 Proposed control 2.1 imposes a curfew on Mr Khazaal: he is required to remain at specified premises between certain hours each day. The curfew period initially sought by Commander Booth required Mr Khazaal to be at the premises between 10.00 pm and 6.00 am; however, she subsequently indicated a preparedness to amend that period to start at 11.00 pm. 38 Mr Khazaal submitted that the curfew period sought by Commander Booth was disproportionate and that a curfew period of 12.00 am to 6.00 am was appropriate. In his submission, Commander Booth's stated purpose for the curfew was dubious. In summary, Commander Booth relied on the fact that the book published by Mr Khazaal referred to night as being the optimal time to engage in certain violent or hostile actions and that, in the past, Mr Khazaal had met with certain individuals who were of security concern at night. Mr Khazaal also submitted that the need for such a strict curfew was lessened by the fact that he was, in any event, required to undergo electronic monitoring (control 1). 39 There is some merit in Mr Khazaal's submissions concerning control 2.1. As Anastassiou J noted in Booth v Kaya [2020] FCA 25 at [28], there is "necessarily a degree of arbitrariness in setting curfew hours" and imposing a curfew is "an intrusive constraint upon [a] person's freedom". In Mr Khazaal's case, he is to be subject to electronic monitoring 24 hours a day. That undoubtedly makes the curfew hours less significant. 40 What ultimately is involved is a balancing exercise. On the one hand, it is highly doubtful, in all the circumstances, that shortening the hours of the curfew period slightly, so that the curfew commences at midnight rather than 11.00 pm, would create any additional risk. The circumstances referred to by Commander Booth are not significant and Mr Khazaal is in any event subject to electronic monitoring. On the other hand, the slight shortening of the curfew period would significantly reduce the degree of intrusion on Mr Khazaal's freedom. 41 On balance, I consider that a curfew period of 12.00 am to 6.00 am would be proportionate and reasonable in all the circumstances. Proposed controls 6 and 7 42 Proposed control 6 prohibits Mr Khazaal from possessing, storing, recording or copying documents or electronic media, or attempting to possess or store, or directing someone else to possess, store, record or copy, certain types of documents. The order sought by Commander Booth initially defined the types of documents as being documents that related to certain topics or subject matters, including explosives, firearms, anti-surveillance, execution, beheading and similar such matters. Material was exempted from that prohibition if it had received classification by the Australian Classification Board or was the subject of an exemption granted by a relevant officer of the AFP. 43 Mr Khazaal objected to the breadth of that proposed prohibition, particularly given the potential breadth of the expression "relating to". It was also submitted that Mr Khazaal would have to "research the provenance of all content in his possession" so as to ensure that he did not inadvertently breach this prohibition. 44 Following the hearing and further engagement between the parties, an amended form of control was proposed by Commander Booth which narrowed the scope of the prohibition by limiting it to documents or electronic media which "describe, instruct or counsel the carrying out or use of, or is supportive of the carrying out or use of" the relevant list of topics or subject matters. Two further exemptions were also added: first, if the relevant document was a work of fiction which had been assigned an International Standard Book Number and did not solely or predominantly relate to any of the relevant subject matters; and second, if it was contained in a magazine or newspaper purchased by Mr Khazaal or a member of his household during the period of the order. 45 Mr Khazaal maintained his objection to the proposed order in its amended form. He submitted that the descriptor "describe" was too broad and captured too much material. He also maintained that the amended form of the order did not address his fundamental objection based on his perceived need to research the provenance of all the material in his possession. In his submission, the proposed order was disproportionate and not justified by the degree of risk that he was said to pose. 46 Contrary to Mr Khazaal's submissions, the amended form of control 6 goes some considerable way towards addressing the complaint that the proposed prohibition was disproportionately broad and might result in an inadvertent breach by Mr Khazaal. There is, however, some merit in his objection to the use of the word "describe". The problem is that the use of the word "describe" means that, even with the additional carve-outs, the prohibition could capture material about which there could be no relevant objection to Mr Khazaal possessing. Mr Khazaal could, for example, potentially breach the order by possessing a reputable work of non-fiction giving a historical account of the bombing that occurred in Europe in the First or Second World War. Such a work could be said to "describe" bombing, which is one of the topics or subject matters in the relevant list. It would also not fall within any of the carve-outs. Another example of a book that would be captured by the proposed order would be a reputable historical account of the beheading of Anne Boleyn. That work would "describe" beheading, which was one of the other proscribed topics. 47 The obvious point of control 6 is to prevent Mr Khazaal from possessing or being exposed to extremist material and material which could be used to provide support for or facilitate a terrorist act, or support or facilitate the engagement in a hostile activity in a foreign country. The use of the word "describe" in the proposed form of control 6 would capture material that went well-beyond that type of material. 48 It may be presumed that the rationale for including the word "describe" in the proposed order is that, in some circumstances, a graphic or detailed description of something — for example, "beheading" — might be seen as implicitly instructing or supporting such an activity. That rationale can be met by a slight rewording of the relevant qualifying words in control 6(a)(i) and (ii) so they read, relevantly: "Instruct, counsel the carrying out or use of, or are supportive of the carrying out or use of, or in that context describe …". That would make it clear that a document which contained a purely factual or historical description of, for example, bombing or beheading, would not be captured unless it could sensibly be considered to somehow provide some form of instruction, or counsel or encouragement for that sort of conduct. 49 An order in that form could not be said to be disproportionate. It would achieve the relevant and appropriate object of preventing Mr Khazaal from possessing or being exposed to extremist material, or material which could potentially be used to provide support for or facilitate any sort of terrorist act or hostile activity. It is highly doubtful that it would be necessary for Mr Khazaal to conduct any stocktake of the material presently held by him so as to avoid breaching the control. If that was necessary, however, it would in any event not be too difficult for him to identify and discard material that would fall within the prohibition. 50 Control 7 is similar to control 6. It prohibits Mr Khazaal from accessing or viewing documents or electronic media, or attempting to access or view documents or electronic media, which fall within the same description of documents or electronic media as the description in control order 6. Mr Khazaal's objections to control 7 were essentially the same as those he raised in respect of control order 6. Subject to the same minor amendment being made to control 7 as that which has just been discussed in respect of control order 6, control 7 should be made in the form most recently proposed by Commander Booth. Such a control would be relevantly proportionate and appropriate. Proposed control 11.1 51 Proposed control 11.1 prohibits Mr Khazaal from communicating or associating with, or attempting to communicate or associate with, certain categories of person and certain specifically named persons. Mr Khazaal's objection to this control is very narrow. In short, he objects to the fact that one of the named persons who he is prohibited from communicating or associating with is his son-in-law (Mr A). Mr A is specifically named as a person with whom Mr Khazaal is prohibited from communicating or associating with. He is also indirectly prohibited from communicating or associating with Mr A because Mr A resides in Saudi Arabia with his wife, Mr Khazaal's daughter and their two sons. Control 11.1(e)(ii) prohibits Mr Khazaal from communicating or associating with any person in, inter alia, Saudi Arabia, except his daughter and her two sons, Mr Khazaal's grandsons. Mr A is not included in that exemption. 52 The apparent basis for including Mr A amongst the list of persons who Mr Khazaal is to be prohibited from communicating or associating with is that Mr A is believed to be studying sharia law in Saudi Arabia. Commander Booth apparently relies on a letter that Mr Khazaal sent to someone while he was in prison which referred to the fact that his son-in-law was studying sharia law and then stated: "then he be my junior sheikh". It was submitted on behalf of Commander Booth that the concern which arose from that statement was "the issue of influence". 53 Mr Khazaal submitted, in effect, that the statement in the letter relied on by Commander Booth had to be read in context. It was clear, so it was submitted, that the letter contained an affectionate update on Mr Khazaal's family news and that there was nothing untoward about Mr Khazaal's sense of pride in respect of his son-in-law's religious learning. As for the reference to "junior sheikh", it was also necessary to have regard to the fact that there was a "smiley face" image drawn immediately after that statement. That underscored the fact that there was nothing untoward or nefarious about Mr Khazaal's statement, which appeared to be little more than a quip or light-hearted remark. 54 The letter does appear to be a fairly flimsy basis upon which to prohibit Mr Khazaal from communicating or associating with his son-in-law. There is nothing sinister or improper about studying sharia or Islamic law. More significantly, Mr Khazaal's fleeting and apparently light-hearted reference to Mr A becoming his junior sheikh is a fairly tenuous basis upon which to infer that Mr Khazaal may exert, or attempt to exert, influence over Mr A, let alone an influence which involved Mr Khazaal seeking to impose extremist views on Mr A, or otherwise influencing him in a way related to supporting or facilitating terrorism or hostile activities. 55 In those circumstances, the imposition of this prohibition would appear to be disproportionate to any risk that might arise should Mr Khazaal be permitted to communicate or associate with Mr A. There could be little doubt that the imposition of that prohibition would have a significant impact on Mr Khazaal and his family circumstances. It would be difficult and awkward for him to freely communicate and associate with his daughter and his grandchildren and yet be prevented from doing so with Mr A. 56 On balance, control 11.1 should be amended to permit Mr Khazaal to communicate and associate with Mr A: his name should be added to the exception in 11.1(e)(ii) and deleted from the list of persons in 11.1(f). Proposed control 16.8 57 Control 16.1 prohibits Mr Khazaal from accessing or using, or causing any person to access or use on his behalf, any of a long list of websites, applications or computer programs (platforms). Mr Khazaal did not raise any objection to control 16.1 in its latest iteration. He did, however, raise an issue concerning control 16.8, which is in fact a paragraph which seeks to ameliorate, to some extent, the prohibition in such a way so as to avoid the risk of inadvertent or innocent breach of the prohibition. 58 Mr Khazaal had previously noted that he might inadvertently breach the prohibition in control 16.1 if he visited a website which include an "instant chat" function that might utilise one of the prohibited platforms. Control 16.8 provides that controls 16.1 and 16.2 do not prohibit Mr Khazaal from accessing or using such a website for the purpose of obtaining or receiving customer service. Mr Khazaal's complaint concerning the drafting of control 16.8 appears to be that, contrary to the apparent intention of Commander Booth, he might breach control 16.1 if he visits a website with such an instant chat function if he does not have the intention of obtaining or receiving customer service. 59 Whatever the merits of the complaint may be, it can readily be resolved by amending control 16.8 so it reads as follows: Controls 16.1 to 16.2 do not prohibit you from accessing or using 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, concerning customer service, or prohibit you from accessing or using such a function on a website if you do so for the purpose of obtaining or receiving customer service. Proposed control 20 60 Control 20 allows Mr Khazaal to request the "AFP Superintendent", as defined in control 21, to approve an exemption from controls 1 to 19. This control was originally drafted in such a way that it only permitted Mr Khazaal to request an exemption from a limited number of controls. After the hearing and further consultation, Commander Booth, quite reasonably, amended it to allow for an exemption in respect of any of the controls. 61 Mr Khazaal contended that two additional paragraphs should be added to control 20. The first additional paragraph would provide that the AFP Superintendent could only refuse a request for an exemption if he or she "consider that granting the exemption would substantially diminish the capacity of the control order to (a) protect the public from a terrorist act; or (b) prevent the provision of support for the facilitation of a terrorist act". The second additional paragraph would provide that the AFP Superintendent must consider whether to grant the exemption within 72 hours of the request being made. 62 Neither of those additional paragraphs are necessary or appropriate so as to ensure that the control orders that are made are proportionate. It may reasonably be assumed that the AFP Superintendent will act reasonably in considering any request made by Mr Khazaal under control 20 and will consider the request in a timely fashion. It is, however, not appropriate to impose on the AFP Superintendent a mandatory direction that a request only be refused in a certain circumstance, even if that circumstance is intended to be modelled on the objects set out in s 104.1 of the Code. The proposed direction is all the more problematic given that the AFP Superintendent would only be permitted to refuse the exemption if it "substantially" diminished the capacity of the controls to achieve their intended objective. It should be open to the AFP Superintendent to refuse the exemption if it diminished the capacity of the controls to achieve the desired objective in any material respect. 63 Nor is it necessary or appropriate to impose a strict and arbitrary time limit on the AFP Superintendent in relation to the consideration of an exemption request. The time needed for the AFP Superintendent to consider properly and reasonably an exemption request will no doubt depend on the nature of the request and the investigations that may need to be undertaken in relation to the request. Proposed control 21 64 Proposed control 21 is in fact a provision which contains various definitions. The issue raised by Mr Khazaal concerning this provision concerns the definition of "AFP Superintendent". Several of the controls use that expression when referring to the person who Mr Khazaal is required to notify of certain things, or seek a certain approval from or make a request to. Control 20, just referred to, is such a control. Mr Khazaal's concern was that there may be "room for doubt", as far as he was concerned, as to whether the person he was dealing with in that respect was in fact an AFP Superintendent as defined. That is because the definition includes "any AFP member or special member authorised to perform duties or functions or otherwise act on behalf of a Superintendent within the Counter Terrorism portfolio in connection with [the] control order". 65 Mr Khazaal's concerns in that regard are more theoretical than real. Mr Khazaal could no doubt seek clarification and confirmation from any AFP member with whom he had dealings in respect of the control order so as to ensure that they fell within the definition of AFP Superintendent. It is difficult to imagine that an AFP member, in that context, would not be able to provide that clarification or confirmation if asked. Commander Booth also indicated that Mr Khazaal would be given a specific contact telephone number to call for the purpose of the control order. Mr Khazaal contended that the contact number should be included in the control order. That would, however, not only be unnecessary but also potentially problematic. What if, for example, the contact number had to change for some reason? It would then be necessary to apply for a variation of the order. In all the circumstances, the proposed definition of AFP Superintendent in control 21 is adequate. Conclusion in relation to the form of the order 66 Subject to the very minor amendments referred to in these reasons, the controls most recently proposed by Commander Booth are all reasonably necessary and reasonably appropriate and adapted for the purpose specified in s 104.4(1)(d) of the Code. An interim control order containing those controls will be made. NON-PUBLICATION ORDERs 67 Commander Booth also applied for non-publication and suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in respect of certain paragraphs of her affidavit and certain paragraphs of annexures to her affidavit. Those paragraphs either reproduced extracts from the book published by Mr Khazaal or named a person who had committed sexual offences against a minor. The grounds upon which it was said those orders should be made was that they were necessary to prevent prejudice to the proper administration of justice and to protect the safety of a person: subss 37AG(1)(a), (b) and (c) of the FCA Act. Commander Booth's affidavit contained evidence relevant to those grounds. Mr Khazaal did not oppose the making of these orders. 68 Mr Khazaal also sought non-publication and suppression orders in respect of the address at which he is required to reside as referred to in Control 2.1, his telephone number as referred to in Control 13.1, and the names of the persons who reside in certain countries but who Mr Khazaal is permitted to associate with as referred to in Control 11.1(e)(ii). The grounds upon which it was said that those orders should be made was that they were necessary to prevent prejudice to the proper administration of justice and to protect the safety of a person: subs 37AG(1)(c) of the FCA Act. Commander Booth did not oppose the making of these orders. 69 It is unnecessary to provide detailed reasons in relation to the proposed non-publication and suppression orders. Save for one minor observation, it suffices to say that I am satisfied in all the circumstances that there are proper grounds under s 37AG for the making of those orders. 70 The minor observation that should be made relates to the non-publication and suppression orders relating to parts of the evidence that refer to the book published by Mr Khazaal. Some of the details of the book which are referred to in the parts of the evidence which are the subject of the non-publication and suppression orders have, to a certain extent, already been made public. That is because the sentencing remarks of the judge who sentenced Mr Khazaal, the judgments of the CCA in relation to Mr Khazaal's appeals and the judgment of the High Court, all refer to a certain extent to some parts of or extracts from the book. There are also references to parts of the book in these reasons. The parts of the evidence that are covered by the non-publication and suppression orders, however, contain far more detailed and explicit references to the book. 71 Consideration was given to exempting from the non-publication and suppression orders the general information or short extracts from the book that have already been made public in this and previous judgments. That proved to be too complex an exercise and may have resulted in orders that were convoluted and confusing. That obviously would be counterproductive and not in the interests of justice. Ultimately, the fact that the non-publication and suppression orders may cover some, albeit not a large amount, of information which has already been made public is not contrary to the public interest in open justice and provides no reason not to make the orders sought. CONCLUSION AND DISPOSITION 72 I am satisfied on the balance of probabilities that each of the four preconditions for the making of an interim control order have been satisfied. 73 I am satisfied that, subject to the minor amendments or variations referred to in these reasons, the obligations, prohibitions and restrictions which Commander Booth proposed be included in the interim control order are reasonably necessary, and reasonably appropriate and adapted, for the purposes referred to in s 104.4(1)(d) of the Code. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate: Dated: 26 August 2020