IAN MCCARTNEY ZAINAB ABDIRAHMAN-KHALIF ORDER JUDGE: …

Federal Court of Australia

District Registry: South Australia

Division: General No: SAD245/2019

IAN MCCARTNEY Applicant

ZAINAB ABDIRAHMAN-KHALIF Respondent

ORDER

JUDGE: JUSTICE CHARLESWORTH

DATE OF ORDER: 30 March 2020

WHERE MADE: Adelaide (in Chambers)

THE COURT ORDERS BY CONSENT THAT:

1. By consent of the parties, pursuant to s 104.11A of the Schedule to the Criminal Code Act 1995

(Cth), Annexure A to the Interim Control Order made on 22 November 2019 (and varied on

16 December 2019 and 5 February 2020) be varied in the manner indicated with “underline” and

“strike-through” text in the Annexure to these orders.

Date that entry is stamped: 30 March 2020

1. ANNEXURE A

1. Control 1

(a) You are required to remain at premises:

(i) nominated by you within 24 hours from the time that this Interim Control

Order comes into force; and

(ii) approved in writing by the AFP Superintendent (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.

(b) You must present and identify yourself at the specified premises during the curfew

period upon request by a police officer.

2. CONTROL 2

(a) 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

(a) You are prohibited from being at any of the following areas:

(i) within the exclusion zone shaded in yellow set out in Annexures 1 and 2 at

Adelaide Airport; and

(ii) within the exclusion zone shaded in yellow set out in Annexures 3 and 4 at

Port Adelaide; and

(iii) 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;

(iv) 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;

(v) inside, or in the grounds of, any prison or correctional facility unless you are

incarcerated there;

(vi) at the residence of any person with whom, by reason of Control 10, you are

prohibited from communicating or associating;

(vii) any place in Australia outside the state of South Australia.

4. CONTROL 4

(a) You are prohibited from leaving Australia for any period of time while this Interim

Control Order is in force.

5. CONTROL 5

(a) 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:

(i) explosives, explosive devices, initiation systems or firing devices;

(ii) firearms, ammunition or knives;

(iii) anti-surveillance or counter surveillance.

unless that material is:

(iv) published by a “constituent body” of the Australian Press Council;

(v) broadcast on Australian free to air television;

(vi) broadcast on Australian pay television;

(vii) shown in a commercial movie cinema;

(viii) broadcast on one of the following streaming services: Netflix; STAN;

ABC iView; or SBS on demand.; or

(ix) contained in material that is served on you or your legal representatives by or on

behalf of the Applicant in Federal Court proceeding McCartney v Abdirahman-

Khalif (SAD 245 of 2019), including any appeal from that proceeding.

6. CONTROL 6


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:

(i) execution;

(ii) beheading;

(iii) suicide attack;

(iv) bombing;

(v) terrorist attack;

(vi) propaganda and promotional material for a terrorist organisation including the

al-Hayat Media Centre; or

(vii) 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:

(viii) published by a “constituent body” of the Australian Press Council;

(ix) broadcast on Australian free to air television;

(x) broadcast on Australian pay television;

(xi) shown in a commercial movie cinema;

(xii) broadcast on one of the following streaming services: Netflix; STAN;

ABC iView; or SBS on demand.; or

(xiii) contained in material that is served on you or your legal representatives by or on

behalf of the Applicant in Federal Court proceeding McCartney v Abdirahman-

Khalif (SAD 245 of 2019), including any appeal from that proceeding.

7. CONTROL 7

(a) 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:

(i) explosives, explosive devices, initiation systems or firing devices;

(ii) firearms, ammunition or knives;

(iii) anti-surveillance or counter surveillance;

(iv) executions;

(v) beheading;

(vii) suicide attacks;

(viii) bombings;

(ix) terrorist attacks;

(x) propaganda and promotional material for a terrorist organisation including the

al-Hayat Media Centre;

(xi) 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


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

(a) 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:

(i) firearms or ammunition;

(ii) a “prohibited weapon” within the meaning of s 6 of the Summary Offences

Regulation 2016 (SA);

(iii) any quantity of petrol exceeding four litres;

(iv) any quantity of any chemical which is not consistent with reasonable domestic

use.

10. CONTROL 10

(a) You are prohibited from communicating or associating with:

(i) any person incarcerated in any correctional facility;

(ii) any person located in Turkey, Iraq or Syria;

(iii) any of the following specified individuals:

1 Daniel John CLAVELL (Date of birth: 07/07/1987);

2 Nathan John CLAVELL (Date of birth: 27/04/1998);

3 Samia HUSSAIN (Date of birth: 12/02/1998);

4 Joel Edward James CLAVELL (Date of birth: 20/02/2000);

5 Joshua John CLAVELL (Date of Birth: 25/01/1989); and

11. CONTROL 11

(a) You are prohibited from accessing or using, any mobile telephone device other than

one mobile telephone device at any one time (the a permitted mobile phone), and

your use of the a permitted mobile phone is subject to the following conditions:

(i) before using the a permitted mobile phone, you must present it to the AFP

Superintendent (or a police officer specified in writing by the AFP

Superintendent) for inspection;

(ii) before using the a permitted mobile phone, you must advise the AFP

Superintendent, in writing, of the following information: the International

Mobile Equipment Identity number for the a permitted mobile phone, the

Integrated Circuit Card Identifier for the SIM card you will use with the a

permitted mobile phone, the telecommunication service provider which you

will use with the a permitted mobile phone, and the phone number to which

the a permitted mobile phone will be connected;

(iii) once you have advised the AFP Superintendent of the information required by

paragraph 11(a)(ii) 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 a permitted mobile phone.

(b) You are prohibited from causing or permitting another person to use or access the

a permitted mobile phone.

(c) You are prohibited from causing or permitting another person to use or access any

mobile telephone device on your behalf.

12. CONTROL 12

(a) 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 AFP Superintendent

for you to access or use.

(b) To seek approval, you must:

(i) submit a written request to the AFP Superintendent which nominates the

fixed or landline telephone service; and

(ii) provide any other information requested by or on behalf of the AFP

Superintendent for the purpose of identifying the nominated fixed or

landline telephone service.

(c) You are prohibited from causing another person to use or access any fixed or

landline telephone service on your behalf.

13. CONTROL 13

(a) 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 AFP Superintendent as soon as possible after accessing or

using such a public telephone and:

(i) provide sufficient detail to the AFP Superintendent to identify the public

telephone that you accessed or used, the date, time and phone number

called; and

(ii) you explain the nature of the emergency which required you to access or use

that public telephone.

14. CONTROL 14


on your behalf, any satellite telephone service.

15. CONTROL 15


on your behalf, any of the following websites, applications or computer programs

(collectively, platforms), as the case may be:

(i) FaceTime

(ii) WhatsApp

(iii) Viber

(iv) Telegram

(v) Skype

(viii) Instagram

(ix) Snapchat

(x) KIK

(xi) iCall

(xii) WeTalk

(xiii) Lync2013

(xiv) Nimbuzz Messenger

(xv) Whistle Phone

(xvi) Talkatone

(xvii) Discord

(xviii) Google Duo

(xix) MagicApp

(xx) Signal Private Messenger

(xxi) Zoiper IAX SIP VOIP Softphone

(xxii) Beejive

(xxiii) Fring

(xxiv) JaJah

(xxv) Line2

(xxvi) Talkatone

(xxvii) Truphone

(xxviii) Twitter

(xxix) Yahoo

(xxx) ICQ

(xxxi) Google Talk

(xxxii) MSN Messenger

(xxxiii) AIM

(xxxiv) Yahoo Messenger

(xxxv) Packet8

(xxxvi) Google Hangouts.

(b) In addition to the platforms listed in Control 15(a), 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.

(c) In addition to the platforms listed in Control 15(a), you are prohibited from

accessing or using, or causing any person to access or use on your behalf, any

internet based messaging service.

(d) However, Controls 15(b) and 15(c) do not prohibit access to or the use of:

(i) Facebook and Facebook Messenger; or

(ii) 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.

16. CONTROL 16

(a) You are prohibited from accessing or using any internet service other than the one

service that has been approved in writing by the AFP Superintendent for you to

access or use (the permitted internet service).

(b) To seek approval:

(i) you must submit a written request to the AFP Superintendent which:

1 nominates the internet service provider account; and

2 nominates the devices you will connect to the internet service (including

but not limited to computers and televisions);

(ii) provide any other information requested by, or on behalf of, the AFP

Superintendent, in relation to, or for the purpose of identifying, the

nominated account and devices.

(c) You are prohibited from causing or permitting another person to access or use the

permitted internet service.

(d) You are prohibited from causing any other person to access or use on your behalf

any internet service.

17. CONTROL 17

(a) You are prohibited from accessing or using any electronic mail (email) account other

than one account that has been approved in writing by the AFP Superintendent for

you to access or use (the permitted email account).

(b) To seek approval:

(i) you must submit a written request to the AFP Superintendent which

nominates the email account; and


Superintendent in relation to, or for the purpose of identifying, the

nominated account which you will be accessing or using.

(c) You are prohibited from causing or permitting another person to use or access the

permitted email account.

(d) You are prohibited from causing any other person to access or use on your behalf

any email account.

18. CONTROL 18

(a) You are prohibited from accessing or using any computer other than one computer

that has been approved in writing by the AFP Superintendent for you to access or

use (the permitted computer).

(b) To request approval you must:

(i) submit a written request to the AFP Superintendent which nominates the

computer; and

(ii) provide any information requested by or on behalf of the AFP Superintendent

in relation to, or for the purpose of identifying and accessing, the nominated

computer.

(c) If the approval is granted, you must provide the AFP Superintendent, or a police

officer acting under the AFP Superintendent’s direction, the password for the

permitted computer if you are requested to do so by the AFP Superintendent or

the police officer.

19. CONTROL 19


on your behalf, any tablet device, including but not limited to an iPad or a Samsung

Galaxy Tab.

20. CONTROL 20

(a) 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.

(b) If you agree to participate in such counselling or education you must advise the AFP

Superintendent in writing that you have commenced the counselling or education

and provide the AFP Superintendent the name and qualifications of the professional

you have engaged.

21. EXEMPTIONS

(a) You may request the AFP Superintendent approve an exemption to the

requirements or prohibitions (as the case may be) specified in Controls 1(a), 2(a),

3(a)(vii), and 10(a)(ii).

(b) To request an exemption, you must:

(i) submit a written request to the AFP Superintendent which:

1 identifies the Control in respect of which you seek an exemption;

2 explains the extent to which you seek to be exempted from the Control;

and

3 explains your reason(s) for seeking the exemption;

and


Superintendent for the purposes of determining whether to approve the

exemption.

(c) The AFP Superintendent may grant an exemption subject to conditions specified in

writing.

(d) You must comply with all of the conditions specified in writing by the AFP

Superintendent. 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.

(e) A request for an exemption must be made before the material time and date.

(f) If the AFP Superintendent has not approved an exemption by the material time and

date, the request is deemed to have been refused.

22. INTERPRETATION

(a) In this Interim Control Order:

(i) Material time and date means:

1 in relation to a request for an exemption to the requirement in

Control 1(a) ⎯ 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);


Control 2(a) ⎯ 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);


Control 3(a)(vii) ⎯ the time and date at which you wish to depart South

Australia; and


Control 10(a)(ii) ⎯ the time and date at which you wish to communicate

with a person located in Turkey, Iraq or Syria.

(ii) AFP Superintendent means a member of the Australian Federal Police

performing the duties of a Superintendent within the Counter Terrorism

portfolio.

(iii) 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.

(iv) 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).

Annexure 1

Interim Control Order - Exclusion Zones Adelaide Airport - Close Up

Annexure 2

Interim Control Order – Exclusion Zones Adelaide Airport

Annexure 3

Interim Control Order – Exclusion Zones Port Adelaide Map 1

Prepared in the South Australia District Registry, Federal Court of Australia

Commonwealth Law Courts, 3 Angas St, Telephone 08 8219 1000

Annexure 4

Interim Control Order – Exclusion Zones Port Adelaide Map 2

Documents

IAN MCCARTNEY ZAINAB ABDIRAHMAN-KHALIF ORDER JUDGE: …