McCartney v EB (No 2) [2019] FCA 184

McCartney v EB (No 2) [2019] FCA 184

The interim control order was confirmed without variation because the statutory preconditions in s 104.14 were met, EB had been convicted in Australia of an offence relating to terrorism and had provided support for or otherwise facilitated engagement in a hostile activity in a foreign country, and the whole of the evidence, including AFP and ASIO assessments, established on the balance of probabilities that each obligation, prohibition and restriction was reasonably necessary, and reasonably appropriate and adapted, for preventing support for or facilitation of a terrorist act and for preventing support for or facilitation of engagement in a hostile activity in a foreign country.

Jurisdiction
Australia
Judgment Date
22 February 2019
Procedural Posture
Criminal Law – Control Orders / Application for Confirmation of an Interim Control Order Without Variation Pursuant to S 104.14(7)(c) of the Criminal Code Act 1995 (cth)
Outcome
Interim control order confirmed without variation.
Legal Topics
['control Orders' 'confirmation of Interim Control Order' 'terrorism Related Offence' 'hostile Activity in a Foreign Country' 'reasonably Necessary, Reasonably Appropriate and Adapted Obligations, Prohibitions and Restrictions' 'non Publication Orders' 'access to Documents']
['criminal Law' 'federal Crime and Related Proceedings'] ['control Orders' 'confirmation of Interim Control Order' 'terrorism Related Offence' 'hostile Activity in a Foreign Country' 'reasonably Necessary, Reasonably Appropriate and Adapted Obligations, Prohibitions and Restrictions' 'non Publication Orders' 'access to Documents']

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Procedural Posture

Criminal Law – Control Orders / Application for Confirmation of an Interim Control Order Without Variation Pursuant to S 104.14(7)(c) of the Criminal Code Act 1995 (cth)

Legal Issues

  1. 1 ['Whether the preconditions for the Court to entertain an application to confirm the interim control order under s 104.14 of the Criminal Code Act 1995 (Cth) were satisfied.' 'Whether the Court was satisfied on the balance of probabilities as mentioned in ss 104.4(1)(c) and (d) of the Criminal Code Act 1995 (Cth).' 'Whether each obligation, prohibition and restriction in the control order was reasonably necessary, and reasonably appropriate and adapted, for the purpose of preventing the provision of support for or the facilitation of a terrorist act and preventing the provision of support for or the facilitation of engagement in a hostile activity in a foreign country.' 'Whether the interim control order should be confirmed without variation.']

Ratio Decidendi

The interim control order was confirmed without variation because the statutory preconditions in s 104.14 were met, EB had been convicted in Australia of an offence relating to terrorism and had provided support for or otherwise facilitated engagement in a hostile activity in a foreign country, and the whole of the evidence, including AFP and ASIO assessments, established on the balance of probabilities that each obligation, prohibition and restriction was reasonably necessary, and reasonably appropriate and adapted, for preventing support for or facilitation of a terrorist act and for preventing support for or facilitation of engagement in a hostile activity in a foreign country.

Court Disposition

Interim control order confirmed without variation.

Orders

  • ['Pursuant to s 104.14(7)(c) of the Criminal Code Act 1995 (Cth), the Court confirms without variation the interim control order made in relation to the respondent on 30 January 2019.' "There is to be no publication of the form of these orders that includes any information that might identify the Respondent,...