McCartney v Abdirahman-Khalif (No 2) [2020] FCA 1002

McCartney v Abdirahman-Khalif (No 2) [2020] FCA 1002

The court found, on the balance of probabilities, that confirming a varied control order would substantially assist in preventing a terrorist act or the provision of support for such, given the respondent's past conduct, associations, risk factors, and lack of evidence of changed ideology. Each confirmed control was found to be reasonably necessary, appropriate, and adapted for statutory aims, except specific controls identified as unduly restrictive. The interim control order was accordingly varied and confirmed, with reasons given for each restriction.

Jurisdiction
Australia
Judgment Date
17 July 2020
Procedural Posture
Application to Confirm and Vary Interim Control Order / Judgment on Confirmation of Interim Control Order
Outcome
Interim Control Order varied and confirmed
Legal Topics
['control Orders' 'prevention of Terrorist Acts' 'appropriateness and Necessity of Restrictions' 'judicial Discretion in Control Orders' 'association and Communication Restrictions']
['criminal Law' 'counter Terrorism' 'public Safety'] ['control Orders' 'prevention of Terrorist Acts' 'appropriateness and Necessity of Restrictions' 'judicial Discretion in Control Orders' 'association and Communication Restrictions']

Case Brief

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Procedural Posture

Application to Confirm and Vary Interim Control Order / Judgment on Confirmation of Interim Control Order

Legal Issues

  1. 1 ['Whether conditions for confirmation of interim control order under s 104.14 of the Criminal Code Act 1995 (Cth) are satisfied' 'Whether the obligations, prohibitions and restrictions in the order are reasonably necessary, appropriate and adapted to protect the public from or prevent support for a terrorist act' 'Whether sufficient evidence supports confirmation and variation of the order']

Ratio Decidendi

The court found, on the balance of probabilities, that confirming a varied control order would substantially assist in preventing a terrorist act or the provision of support for such, given the respondent's past conduct, associations, risk factors, and lack of evidence of changed ideology. Each confirmed control was found to be reasonably necessary, appropriate, and adapted for statutory aims, except specific controls identified as unduly restrictive. The interim control order was accordingly varied and confirmed, with reasons given for each restriction.

Court Disposition

Interim Control Order varied and confirmed

Orders

  • ['Pursuant to s 104.14(7)(b) of the Criminal Code, the Interim Control Order made on 22 November 2019 (as varied) is varied and confirmed.' 'The terms of the Control Order, as varied and confirmed, are set out in the Annexure to the Orders.' 'The confirmed Control Order relates to the respondent, Zainab...