State of New South Wales v Fayad (Variation of Conditions)

On 27 February 2021, I made orders in this matter as follows:

My reasons for making those orders were set out in State of New South Wales v Fayad (Final) [2021] NSWSC 294 (the Final Judgment). I do not propose to repeat here my findings, reasoning and conclusions contained in that judgment, but this judgment should be read in conjunction with, and in light of, my reasons in that earlier judgment.

The orders made on 27 February 2021:

The reason for permitting an application to vary the conditions to the ESO was given at [327] of the Final Judgment as follows:

By a notice of motion filed on 12 March 2021, the defendant sought to vary the conditions and a hearing took place on 6 April 2021. Since the original notice of motion was filed before the Final Judgment was published, it became obvious during the hearing that it would be appropriate for:

Directions were made on 6 April 2021 to give effect to that course.

By written submissions filed on 20 April 2021, the defendant sought leave to file an amended notice of motion dated 20 April 2021, identifying the revised proposed conditions and provided submissions in support of the revised proposed conditions.

The filing of the amended notice of motion was not opposed by the plaintiff and it is appropriate in the circumstances to grant leave to the defendant to file that document. An order to that effect should be made.

The conditions that may be imposed as part of an ESO are governed by s 29 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (THRO Act). That section provides:

Failure to comply with the requirements of an ESO is a criminal offence under s 30 of the THRO Act which states:

A degree of flexibility is incorporated into the ESO regime by s 31 of the THRO Act which permits ESOs to be varied or revoked in the following terms:

The principal provision concerning the imposition of conditions as part of an ESO is section 29. The structure of s 29 is that subs (1) empowers the Court to direct that the defendant comply with such conditions as it considers appropriate, including but not limited to, those directions listed in pars (a) to (t). In addition, subs (1A) mandates that the conditions specified in pars (a) to (r) of that subsection must be included "[u]nless the Supreme Court orders differently". In relation to s 29(1A), I accept the defendant’s submissions that s 29(1A) does not impose an onus of proof on the defendant to establish that any condition in that subsection is not appropriate. Rather, the Court’s task under s 29 is to impose those conditions which, in the circumstances of the particular case, are appropriate in order to achieve the protective and rehabilitative objects of the THRO Act.

Furthermore, where a number of different conditions dealing with one topic might be appropriate, the Court has a discretion to choose the condition which it considers preferable, taking into account, inter alia, the mandatory but qualified requirements of s 29(1A) if applicable. A condition different from one in s 29(1A) may be preferable, for example because it is better suited to achieving the objects of the THRO Act in the circumstances than the condition in subs (1A). Furthermore, the Court, in its discretion, may conclude that a condition specified in subs (1A) should not be imposed because it deals with a topic that is not relevant or necessary to be dealt with in the particular case. For example, where there is no suggestion that drug or alcohol use or abuse plays any part in the risk posed by a defendant or has any relevance for the defendant’s prospects of rehabilitation, the Court may “order differently” by not imposing the conditions in s 29(1A)(g) and (h), which relate to drug and alcohol use and testing.

In all cases, however, the approach to the imposition of conditions under s 29 should be guided by:

The authorities relating to the THRO Act and cognate high risk offender legislation establish a number of general propositions concerning the imposition of conditions under ESOs. One fundamental principle is that the defendant, having served a sentence of imprisonment for his offending, has a right to personal liberty, nonetheless, this right is not absolute: State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 (Wilkinson) at [44] (Hoeben CJ at CL). The limitations on that right include those inherent in the provisions, objects and purpose of the THRO Act.

In addition, the process of determining what conditions may be imposed under s 29 of the THRO Act in order to diminish the relevant risk posed by the defendant to an acceptable level will involve a balancing exercise, and the Court will seek to impose the least intrusive conditions consistent with its assessment of the risk and the kind of conditions that are likely to be effective: Lynn v State of New South Wales [2016] NSWCA 57 at [129] (Basten JA).

The conditions that may be imposed do not have to have a demonstrated link to past offending; rather, the Court must be satisfied, having regard to the scope, purpose and objects of the THRO Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales [2015] NSWCA 28 (Wilde) at [53]; 249 A Crim R 65 (Beazley P, McColl and Ward JJA), Wilkinson at [44]. There may be a sufficient connection if, for example:

It is also to be borne in mind that a common sense approach should be taken to the formulation (and enforcement) of appropriate conditions. At the stage of formulation of the conditions, this involves avoiding conditions that are too restrictive and which may operate counterproductively by exposing the defendant to the highly likely, if not inevitable, prospect of a breach and the commission of an offence under s 30 of the THRO Act. On the other hand, such a common sense approach also involves imposing conditions that ensure the safety and protection of the community by having the defendant adequately monitored and directed: State of New South Wales v Osman [2021] NSWSC 124 at [43] (Harrison J) and see also State of NSW v Keith Farringdon [2018] NSWSC 874 (Button J). It is also to be expected that enforcement officers and the defendant will implement and comply with an ESO in a common sense fashion. If that proves not to be the case, variation or revocation can be sought under s 31 of the THRO Act.

I now turn to consider the conditions to be imposed in light of those statutory provisions and the applicable principles.

Some of the 51 present conditions (set out in the schedule to the Final Judgment) were not pressed by the plaintiff, some were not opposed by the defendant, and in relation to some the plaintiff was prepared to accept the defendant’s proposal for change. Consequently, only some of the conditions were in dispute. The effect of the plaintiff’s and the defendant’s positions can be summarised as follows:

In the circumstances of the present case, it appeared to me that the conditions and definitions that were not in dispute were appropriate and the conditions which were to be deleted were neither appropriate nor required. Given these findings and since the parties were in agreement in relation these conditions and definitions, it is not necessary to deal with them in any more detail. It is more useful to concentrate on the 19 conditions and 2 definitions which were in dispute.

The defendant opposed condition 1, which is required by s 29(1A)(a) to be included, unless the Court orders differently. Condition 1 provides that the defendant is:

The defendant contended that this condition should be replaced with a condition that:

The plaintiff responded by proposing that condition 1 in its current form be supplemented by the explanation:

The defendant opposed the imposition of an obligation to provide a schedule of movements but proposed that, if required, a revised condition 1 could include the following as an alternative to a schedule of movements:

The substance of the defendant’s major ground for opposing condition 1 was that the obligation to “submit to the supervision and guidance of any enforcement officer” was:

These concerns raised by the defendant are not fanciful or far-fetched. An example of the potential for a condition requiring the defendant to “submit to the supervision and guidance of any enforcement officer” to be misunderstood and misused is found in the incident which occurred on 9 December 2020 and which is discussed at [74] to [81] of the Final Judgment. Although I did not, in those paragraphs, make any definitive findings that the interview and questioning on that occasion went beyond what was permissible, there was in my view a clear risk that this may have occurred. The defendant also referred to evidence concerning other incidents occurring while he was subject to the interim supervision order in December 2020 as illustrating the misuse or potential for misuse of the supervision and guidance power. While I do not accept that there has been any deliberate misuse of the power, it does appear to me that there is considerable potential for the obligation in condition 1 to be misunderstood both by the defendant and the enforcement officers in relation to the practical implementation of, and compliance with, the condition.

The plaintiff submitted that the wording of s 29(1A)(a) has been explicitly adopted by the Parliament as a mandatory condition “unless the Supreme Court orders differently”. It was in effect contended that, as such, the wording of condition 1 should not be lightly abandoned. Further, the plaintiff submitted that the purpose of condition 1 could not be adequately effected if it were limited to a requirement that the defendant comply with “reasonable directions” of an enforcement officer because the condition is designed to allow a degree of flexibility in the supervision of the defendant, such that it is not necessary for every instruction provided to be reduced to a formal direction. It was also said that condition 1 promotes the efficacy of the ESO as a whole and prohibits deliberate attempts to evade supervision not otherwise captured by the ESO.

I accept that the Court should have a sound reason for ordering differently and not including condition 1 in the form found in s 29(1A)(a). The potential for mistake and misuse to occur is, however, a significant reason for approaching the wording in that paragraph with some caution.

The expression “submit to the supervision and guidance of [a designated officer]” was, for example, previously used in the specification of the conditions that were to be included if a supervision requirement was imposed as part of a parole order under s 27(4) of the Sentencing Act 1989 (NSW). Clause 10(3) of the Sentencing (General) Regulation 1996 (NSW) provided that a parole order that contained a supervision requirement may state the relevant conditions “in the form set out in Form 2 or 3 under the heading ‘Supervision conditions’”. Those forms set out the “Supervision conditions” as follows:

The same wording “submit to the supervision and guidance of [a designated officer]” is not found in the current provisions relating to supervision conditions in parole orders in s 128C of the Crimes (Administration of Sentences) Act 1999 (NSW) and cl 214A of the Crimes (Administration of Sentences) Regulation 2014 (NSW). Clause 214A, which sets out the supervision obligations of a person on parole is in the following terms:

There are obvious similarities between supervision under an ESO imposed pursuant to the THRO Act and supervision under a parole order, although there are also obvious differences, including that a person released on parole is still serving a sentence and that non-compliance with a parole order is not a criminal offence but it may lead to revocation of parole, under s 170A of the Crimes (Administration of Sentences) Act.

In the parole context, the words “submit to the supervision and guidance of [a designated officer]” do not appear to have been intended to impose obligations additional to the obligation to obey all reasonable directions of the officer and the particular obligations specified in conditions 4(a) to (d) and 5(a) to (e) in Forms 2 and 3 in the Sentencing (General) Regulation 1996 as supervision conditions. This is consistent with the approach to supervision conditions adopted in relation to parole in s 128C of the Crimes (Administration of Sentences) Act 1999 and cl 214A of the Crimes (Administration of Sentences) Regulation 2014, where it was not found to be necessary to include the general words relating to submission to supervision and guidance.

Similarly, it appears to me that in a case such as the present where it is essential to have particularity in relation to the conditions with which the defendant must comply, the legislative intent disclosed by s 29(1A) in its context in the THRO Act can be given effect to by incorporating the words “to submit to the supervision and guidance of any enforcement officer responsible for the supervision of the offender for the time being” in the order by which the conditions are imposed so that the order reads:

In relation to the specific mention of a schedule of movements in condition 1, I note that condition 10, which relates to electronic monitoring, is not in dispute. A schedule of movements is of assistance in rendering electronic monitoring more effective, since the actual movements of the defendant can be subsequently compared with his schedule. In addition, such a schedule permits assessment of risks inherent in the defendant’s movements prior to their taking place as well as random physical checking of the defendant’s location. A requirement to provide a schedule of movements can also be of assistance in focusing the defendant on pro-social activities and groups. The nature of a schedule of movements, if required, is that it permits the defendant considerable freedom of movement, provided that prior notice of the movements is given. A requirement to provide a schedule of movements does not entail effective home detention. The alternative to the schedule of movements, proposed by the defendant would not, in my view, assist in the ways identified above nor would it be an appropriate way in which to manage the risk posed by the defendant.

Given the nature of the risk posed by the defendant and the qualification that any direction for the provision of a schedule of movements must be reasonable and for one of reasons specified in condition 1, it appears to me that a condition requiring the provision of a schedule of movements to be provided, if directed, is appropriate in this case. The issues raised by the defendant as to the onerousness of the directions given by the enforcement officers are adequately addressed by the reasonableness requirement and the expectation that the ESO would be implemented and enforced with common sense. If that expectation were to prove wrong, an application to vary the ESO, and its conditions, could be made under s 31 of the THRO Act.

Accordingly, noting the proposed change to the wording of the order imposing the conditions, I propose to include as condition 1 the following:

The present form of condition 2 is, as prescribed by s 29(1A)(j), as follows:

The defendant contended that this condition should be amended to read:

Part of the reason for the defendant’s proposed changes to the form of condition 2 was to avoid a recurrence of an incident of the type that occurred on 9 December 2020, which has been referred to above. A further basis for the changes was that the direction to make himself available for interview should be in writing (including email or text message) because failure to comply is a criminal offence and certainty as to what is required of the defendant in this regard is appropriate. In addition, it was contended that the subject matter of the interviews should be defined.

The plaintiff contended that there is no reason to depart from the statutory wording in s 29(1A)(j) and that the defendant misunderstands the purpose of the interviews which may be conducted under condition 2. It is said that these interviews are not directed so much at detecting prior offending but rather are directed at assessing the defendant’s progress and detecting signs indicating an increase in risk so that interventions may be formulated.

As I understand it, condition 2 is quite limited in its extent. It only requires the defendant to make himself available for interview, in the sense of attend an interview, if he is directed to do so. Condition 1 indicates that the defendant is only required to comply with an enforcement officer’s “reasonable directions”, as defined in that condition. A direction to attend an interview, for example at a time or place that was impossible, or otherwise so difficult, as to be unreasonable, would not be a reasonable direction. Consequently, it would not have to be complied with.

Further, condition 2 does not seek to specify the subject matter of the interview or to require the defendant to answer any questions in such an interview. The obligation to answer questions has to be found elsewhere in the conditions. For example, condition 3 specifies questions which the defendant may be required to answer. Condition 1, in the form proposed above, requires the defendant to comply with directions of an enforcement officer and, in my view, such a direction may include a direction to answer questions where such a direction is reasonably necessary for ensuring compliance with, or enforcement of, the conditions of the ESO or otherwise to manage the risk posed by the defendant. Other conditions also require the defendant to provide information, including in response to questions, to an enforcement officer - see for example conditions 6, 7, 38 and 41, and it would follow that questions could be asked about those matters. Otherwise, the defendant is entitled to the privilege against self-incrimination, nemo tenetur seipsum prodere, and the privilege against self-exposure to a penalty: State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at [117] – [118]. Accordingly and subject to the particular circumstances, the defendant may be entitled to refuse to answer certain questions at an interview which he is required to attend under condition 2, or he may be entitled to refuse to answer questions unless the interview is recorded by such means as the defendant chooses. It appears to me to be too inflexible to include the wording proposed by the defendant in relation to the recording of interviews with police officers, especially if a common sense approach to the implementation and enforcement of the ESO is adopted by all parties.

Given its limited nature, it does not appear to me that condition 2 should include any restriction on the subject matter of any interview since that is, in effect, to be found in the other conditions of the ESO.

Since an interview within condition 2 is a relatively formal event and non-compliance with a reasonable direction to attend an interview in contravention of condition 2, read with condition 1, may constitute a criminal offence, it appears to me to be appropriate to include wording which ensures that notice of the direction to attend any such interview is in writing, as proposed by the defendant.

Finally, it is unclear why only in s 29(1A)(j) is it stipulated that a nominee of an enforcement officer is permitted to give a direction to a person who is subject to an ESO. Paragraph (j) does not envisage that the nominee will conduct the interview. It may be principally an administrative provision which is intended to allow notice of a requirement to attend an interview to be given by an enforcement officer’s administrative assistant. Since any direction must be reasonable and in writing, it does not appear to me that there is likely to be any prejudice to the defendant if, as an administrative matter, directions to attend interviews can be given by an enforcement officer through a nominee.

For these reasons, I propose to include condition 2 in the following form:

In its present form, condition 5 states:

The defendant contended that he should not be required to obtain prior approval for these vehicle related matters but prior notification of an intention to purchase, hire or drive a vehicle should be sufficient. In this regard, the defendant in substance relied on convenience as the justification for this change. The example given was that the defendant should be able to drive his son’s car home from a social event by giving notice of his intention to do so and without being required to obtain prior approval. It was contended that, if there were a problem, the enforcement officer could give a direction to prevent this being done.

As I perceive it, the difficulty with the defendant’s position is that all he is required to do is to notify an enforcement officer of his intention to purchase, hire or drive a vehicle. There is no specification as to how much notice the enforcement officer should be given. Consequently, immediately before driving his son’s car, or hiring a vehicle, the defendant could give notice of his intention to do so and the enforcement officer could have no, or insufficient, time in which to assess risk or give any direction.

As a result, I do not propose to adopt the defendant’s proposed change to the terms of condition 5, which appears to me to be appropriate in its present form.

Condition 8 is presently in the following terms:

The defendant in effect contended that the sum of $500 had been chosen arbitrarily, on Mr Bagley’s evidence, and was unreasonably low given the likely cost of many common household items. Thus, the sum of $1,500 was proposed in its place. In addition, it was submitted that the requirement to inform the enforcement officer was ambiguous as to whether the notification was to be before or after the transaction and this could be remedied by specifying that notice was to be within 24 hours of entering into a transaction.

The plaintiff accepted that $500 was too low and submitted that $1,000 would be appropriate.

I accept that $1,000 is a more appropriate threshold than $500, in the circumstances, and adequately addresses the relevant risk identified in the Final Judgment. In addition, there appears to me to be some potential ambiguity, as the defendant contends, in relation to whether notice can be given after the transaction is entered into as well as before on the current wording of the condition. There does not appear to me to be a practical problem likely to arise if notice of a transaction is given within 24 hours after the transaction instead of, for example, one minute before a transaction is entered into.

Accordingly, I propose to change condition 8 so that it reads:

The present form of condition 13 reflects the terms of s 29(1A)(n) and is as follows:

The defendant contended that, in its present form, condition 13 permitted Community Corrections officers and Police officers to visit and enter the defendant’s premises an unlimited number of times each week and, as a result, the condition was open to being used oppressively. It was pointed out that, in a six week period in January and February 2021, the defendant had been visited by police on 14 occasions. The defendant proposed that condition 13 should be reformulated so to provide regular monitoring and the ability to enter if there were reasonable concerns that the ESO was being breached but, at the same time, not allowing excessive intrusions upon the defendant’s freedom. The proposed terms of a revised condition 13 were:

The plaintiff submitted that the numerous visits during the early stages of the implementation of the ESO were justified as they related to issuing the defendant with directions, warning him of potential breaches and assisting him with relocation of his residence. During the period from 19 February to 20 March 2021, there have been a further 12 visits for similar purposes and to check compliance with, and to discuss, conditions. It was contended that such visits were not oppressive.

In my view, it is reasonable to expect that, when the ESO regime is finalised and the relationship between the defendant and his enforcement officer or officers becomes well established, the need for visits to the defendant’s premises will be reduced. With common sense implementation, it is unlikely that condition 13, in its present form, would be used oppressively. I also accept that the structure of visits proposed by the defendant has the potential to undermine the effectiveness of visits as a means of ensuring that the defendant complies with conditions and that the risk he poses is adequately managed. This is so especially to the extent that the defendant’s proposed version of the condition would limit the potential for random, unannounced visits.

In all the circumstances, I am not satisfied that there is a sufficient basis to order differently in relation to s 29(1A)(n) and accordingly, condition 13 will be left unchanged.

Condition 14 presently provides:

The defendant contended in substance that this condition should not be included because:

Furthermore, the defendant submitted that even if it were lawful to include such a condition in an ESO, condition 14:

The plaintiff submitted that the conditions that could be imposed as part of an ESO were expressly not limited to those specified in s 29(1) and there was no reason why a curfew could not be imposed as part of an ESO. It was noted that curfews have frequently been imposed as part of an ESO under the THRO Act and cognate legislation and they can be seen as complementing conditions requiring a defendant to live at a particular address and provide a schedule of movements. The plaintiff also contended that a curfew condition was not a form of detention that could only be imposed by way of a continuing detention order but rather it should be seen as facilitating supervision in a way analogous to the imposition of a curfew as part of a conduct requirement condition under the Bail Act 2013 (NSW).

It can be accepted that similar conditions, effectively imposing a curfew “unless other arrangements are approved by an Enforcement Officer”, have been made in relation to many ESOs under the THRO Act and cognate high risk offender legislation: State of New South Wales v Osman [2021] NSWSC 124 provides but one, recent example – see condition 13 in the Schedule of Conditions. This does not, however, provide an answer to the defendant’s submission that condition 14 in the present case is not authorised under the THRO Act since it amounts to a detention condition and is not a condition which can lawfully be imposed under s 29 as part of an ESO. It does not appear that this point has been argued before. The parties did not draw my attention to any authorities in which this point has been considered, either in the context of the THRO Act or any cognate New South Wales legislation or in the context of similar legislation in any other jurisdiction.

I do not accept the defendant’s submissions concerning condition 14 for a number of reasons.

First, while it is probably appropriate to describe condition 14 in its present form as imposing a curfew on the defendant, it should be noted that it is qualified by the clause “unless other arrangements are approved by an Enforcement Officer”. It is inherent in that clause that such approval may be given either in relation to specific occasions or generally by reference to, for example: types of activities; times, days of the week or dates; the person or persons who must accompany the defendant; or similar matters. In order to avoid any doubt as to an enforcement officer’s ability to give general as well as specific approval, I propose to include wording to make that matter clear. Thus, if a common sense and reasonable approach to the implementation of the ESO is adopted, it is unlikely that such a qualified curfew condition would effectively involve the home detention of the defendant or that it would impinge upon the defendant’s freedom beyond what is appropriate for his supervision in order adequately to manage the risk he poses and to give effect to the objects of the THRO Act.

Secondly, it is generally accepted that curfews, such as that found in condition 14, are not a form of custodial detention that might be the subject of a continuing detention order under the THRO Act or cognate legislation or a form of home detention. In Vella v Commissioner of Police (NSW) [2019] HCA 38 at [53]; 93 ALJR 1236, Bell, Keane, Nettle and Edelman JJ contrasted a curfew which might be imposed, for example, under s 6(1) of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (SCPO Act) with various forms of detention in the following way at [53]:

Similarly, the Bail Act 2013 (NSW) expressly recognises in s 52(2)(d) that a curfew condition is a bail condition which can be imposed when a person is released from custodial detention as a result of, for example, a successful release application under s 49 of that Act. By way of another example, s 128E of the Crimes (Administration of Sentences) Act 1999 (NSW) also expressly envisages that a parole order may include a curfew by way of a condition of that order.

Thirdly, s 29(1)(i) and (l) provide that the conditions of an ESO may include that the defendant is:

In my view, a condition to the effect that a defendant not be absent from the address approved by an enforcement officer as his residence between specified hours each day falls within s 29(1)(l), when read in the context of that section, especially s 29(1)(i), and the THRO Act as a whole and bearing in mind the objects, scope and purpose of the THRO Act. Accordingly, such a curfew condition, even if unqualified unlike condition 14, may lawfully be imposed under s 29 of the THRO Act.

Fourthly, as to the defendant’s contentions that, even if lawful, condition 14 is not appropriate because the defendant is subject to electronic monitoring, it appears to me that electronic monitoring and a qualified curfew condition are directed towards effective supervision of the defendant but by different means. In light of the nature of the risk posed by the defendant, which is dealt with in detail in the Final Judgment, both forms of supervision appear to me to be appropriate, especially as the curfew condition is qualified in the way referred to above. In order to accommodate the defendant’s concerns as to his ability to attend prayers, however, the plaintiff has proposed that the hours of the curfew be confined so as not to interfere with the defendant’s ability to do so. This is an appropriate course to adopt.

Finally, I note that the defendant’s concerns about interference with his social and family life can be addressed by making suitable arrangements with his family and friends or by obtaining the approval of the enforcement officer, either by way of a general approval or specific approvals for particular occasions.

Having regard to all of those matters, I consider that condition 14 in the amended form set out below is appropriate and should be included:

Condition 15 is presently in the following form:

The defendant submitted that such a condition was not appropriate to the defendant’s situation because an enforcement officer already has the ability under condition 40 to prohibit the defendant from associating with persons specified by the enforcement officer and under condition 41 the defendant must inform an enforcement officer of the identity of any associates or likely associates. In particular, the defendant submitted:

The plaintiff contended that condition 15 was appropriate in light of the risk identified by the Court in the Final Judgment. But, to address any difficulties obtaining approval, the plaintiff proposed that words be added to clarify that approval could be given generally or specifically.

A very significant aspect of the risk posed by the defendant in this particular case arose out of his engaging, charismatic personality and his ability to engage with and exert significant influence over others, especially younger or vulnerable persons. The risk is that, using his ability to influence, he may be able to convince others to share his views or beliefs and to induce, incite or encourage them to participate in activities and organisations he supports. As a result, it is important in the defendant’s case to ensure that those, especially young or vulnerable persons, with whom the defendant comes into sustained contact are identified and his contact with them is supervised. Condition 15 serves this end. The other conditions, such as conditions 40 and 41, referred to by the defendant in his submissions serve a somewhat different purpose, namely preventing the defendant from associating with persons who have already been or might be identified as inappropriate. The risk posed by the defendant is not likely to be adequately managed if persons not on the “prohibited list” are permitted to visit the defendant for a significant period without any restriction or supervision, as effectively proposed by the defendant.

For these reasons, condition 15, with the clarification proposed by the plaintiff, is appropriate in this case. The form of condition 15 to be included in the conditions to the ESO is as follows:

The present condition 17 is in the form specified in s 29(1A)(r) and is as follows:

The defendant seeks that the condition be amended to include the requirement that any specification of a place or district be in writing and supported by short written reasons. It is said that such a specification would create a new, substantive legal obligation directly affecting the defendant’s freedom of movement which, if made by a court, would attract a duty to give reasons.

The plaintiff submitted that s 29(1A)(r) does not require any specification to be in writing or accompanied by reasons. Further, urgency may require a place or district to be specified orally to the defendant and followed later by a text message, email or written direction. This would not be permitted if the defendant’s proposal were adopted. As to reasons, it was contended in substance that security or intelligence considerations might render the giving of reasons inappropriate or harmful to the safety of the community or the national interest.

I accept the plaintiff’s submissions in relation to condition 17 and am not satisfied that it is appropriate to order differently for the purposes of s 29(1A).

Accordingly, condition 17 will continue in its present form.

Condition 20 presently provides:

The defendant submitted that this form of order was unnecessary as there was nothing to suggest that the defendant had any intention of leaving the country and, in addition, in its current form the condition could be inadvertently breached, for example, simply by driving over the Anzac Bridge or along the M5 motorway. To alleviate this problem, the defendant proposed certain amendments to the condition and also sought to include attending an interview for employment, or attending a place of employment, as purposes which would be expressly excluded from the operation of the condition.

The plaintiff indicated that it was content to accept some of the changes proposed by the defendant but opposed the inclusion of the additional purposes for travel. The basis of opposition was that such changes would render supervision of the defendant more difficult, if not impractical, and thus potentially increase the risk.

Given the other changes to condition 20 which are agreed between the parties, I do not accept that it is necessary or appropriate to include the proposed further purposes for travel which would be excluded from the operation of the condition. Nonetheless, it is in my view appropriate, in order to ensure sufficient flexibility, to permit an enforcement officer to approve the defendant’s going close to the identified points of departure, either in specific instances or generally.

Accordingly, condition 20 will be amended so that it reads:

As presently formulated, condition 21 states:

This condition reflects the wording of s 29(1A)(e) with minor variations.

The defendant sought a minor amendment to condition 21 to clarify that a search may be conducted only for the purposes of enforcing the Court’s orders by adding at the end of the condition the words “conducted for the purposes of enforcing these orders only”.

The plaintiff opposed this amendment contending that the purposes for which searches might be conducted should not be limited to enforcing the orders because searches might be necessary to monitor the risk posed by the defendant, as revealed by the possession of, or access to, material similar to the material found in the garage at the defendant’s premises on 3 December 2013 (details of which are provided in the Final Judgment).

It appears to me that adding the words “conducted for the purposes of enforcing these orders only” could lead to misunderstanding and dispute as to the circumstances in which searches could be conducted. The ability to conduct searches is appropriate in order to monitor and manage the risk posed by the defendant. There does not appear to be a sound basis for ordering differently for the purposes of s 29(1A).

Accordingly, I do not propose to amend the form of condition 21.

Conditions 25, 26 and 27 relate to psychological and psychiatric assessment of the defendant, as well as other healthcare consultations, and can conveniently be dealt with together.

In their present form, those conditions provide:

The defendant contended that the opinion of the psychologist, Dr Seidler, that the defendant did not suffer from a personality disorder should be accepted in preference to the contrary opinion of Dr Ellis, the psychiatrist. In addition, it was noted that the defendant did not suffer from any other psychological or psychiatric condition. Thus, it was submitted that conditions 25 and 27 were inappropriate. The defendant contended that Dr Seidler’s comment that intervention by way of a requirement to attend “disengagement services” would be “unpalatable at best, and possibly an infringement on his human rights at worst” was apt.

The plaintiff noted that condition 25 reflected the wording of s 29(1A)(k) and referred to the comments of Johnson J, in State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 at [288]:

It was also submitted that these conditions, especially conditions 25 and 27, were necessary to ensure that the defendant attended professional appointments related to management of his risk.

I accept, as the plaintiff submitted, that the difference of opinion between Dr Ellis and Dr Seidler as to whether the defendant suffers from a personality disorder is itself a reason for including in the conditions the ability of an enforcement officer to direct the defendant to undergo psychological or psychiatric assessment or counselling and attend therapy sessions and other services or treatments. It can be expected that any such direction will be made reasonably and for the purposes identified in condition 1. I do not accept that Dr Seidler was qualified, as a psychologist, to express a view on whether requiring the defendant to attend disengagement services could “possibly [be] an infringement on his human rights” and it can be noted that the defendant did not advance any legal arguments as to why this conclusion should otherwise be accepted. I also adopt Johnson J’s reasoning in relation to these conditions 25 and 27. In my view, there is no sound basis for ordering differently in relation to s 29(1A)(k) and thus condition 25 is to be included in its present form. Condition 27 supports condition 25 and I am satisfied that it is appropriate having regard to the defendant’s circumstances and the nature of the risk posed by him. For these reasons, I propose to include conditions 25 and 27 in their present form.

As to condition 26, the defendant said that this condition was not warranted because there was nothing the defendant’s risk profile to suggest that, if the defendant went to the doctor for a sore throat, an enforcement officer would need to know about this. The plaintiff accepted that if the ability to require a schedule of movements was contained in condition 1, condition 26 was unnecessary. As indicated above, condition 1 is to include a requirement to obey reasonable directions in respect of a schedule of movements. Accordingly, condition 26 is not required and I propose to delete it.

Conditions 34 and 35 can also be dealt with together. The present form of those conditions is as follows:

The defendant sought that the defendant’s former name, “Fadi Alemeddine”, should be included in condition 34(a). It is not clear whether this is a typographical error. The plaintiff accepted that the defendant’s former name, “Fadi Alameddine”, should be included in condition 34(a). I accept that such a change is appropriate and, having regard to [1] in State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 and [1] in State of New South Wales v Fayad (Final) [2021] NSWSC 294, I propose to adopt the spelling “Fadi Alameddine”.

Otherwise, the defendant contended that condition 34(e) should be limited to “Applications for communicating” and that “immediately” should be deleted from condition 35 and replaced with “within four hours”. These changes were opposed by the plaintiff.

I accept that the applications that might be used by the defendant to access violent extremist or terrorist material on the internet or in some other way that increased the level of risk posed by him would not be limited to “applications for communicating”. Accordingly, the restriction proposed by the defendant for condition 34(e) does not appear to me to be appropriate.

Furthermore, if the defendant changed any of the items or matters listed in condition 34(a) to (e), he would necessarily be aware of the change at that time. If a period of four hours were allowed, as proposed by the defendant, a very substantial amount of communication and accessing of material could take place before the defendant would be required to alert an enforcement officer to the changes. I can see no persuasive reason why he should not be required to inform an enforcement officer of such changes immediately, given the purposes of the ESO and the nature of the risk posed by the defendant.

Consequently, condition 34 will be slightly amended so that it reads as follows and condition 35 will not be amended:

Condition 43 is presently in the following form:

The defendant contended that this condition should not apply where the defendant did not know or reasonably suspect that the persons or organisations advocated support for engaging in terrorist acts. On this basis, it was submitted that the condition should include the words “in circumstances where he knows or reasonably suspects that those persons or organisations are advocating support for engaging in any terrorist acts”.

The defendant’s general proposition was accepted by the plaintiff. However, the plaintiff contended that the knowledge element as well as the suspicion element should include an objective standard in addition to the defendant’s subjective state of knowledge. Thus, it was submitted that the wording to be added should be: “in circumstances where he knows or ought reasonably to know or suspect that those persons or organisations are advocating support for engaging in any terrorist acts”.

Given the nature of the risk in the defendant’s case and the scope, purpose and objects of the THRO Act, I accept the defendant’s general proposition but consider that the plaintiff’s proposed additional wording is preferable and appropriate.

Consequently, condition 43 will be amended to read:

Condition 47 related to the identity and appearance of the defendant and presently states:

The defendant contended that this condition should be qualified so as to allow the defendant to obtain a form of identification in his former name, “Fadi Alameddine” or change his identification to that name, without prior approval.

The plaintiff opposed that amendment on the basis that advance notification and approval should be required so that there was no “lag-period” when the defendant was able to use a form of identification that the plaintiff was not aware of.

The variety of ways in which the defendant’s former last name could be spelt, “Alemmedine” or “Alammedine” as in the defendant’s proposals for amending conditions 34(a) and 47, and the other possibilities in the definition of “Defendant” in Part P: Definitions, provides an illustration of why it is appropriate for condition 47 to be maintained in its current form. There are obviously various former names of the defendant. In order to manage the risk posed by him and to ensure that the plaintiff is fully aware at all times of the forms of identification and name to be used by the defendant, it is in my view appropriate to maintain condition 47 in its present form.

Accordingly, condition 47 will not be varied as sought by the defendant.

Conditions 50 and 51, under the heading “Part O: Extremism” are in the following terms:

The defendant and the plaintiff are in agreement that the word “knowingly” should be included before the word “engage” in condition 50. In my view, this change is appropriate and condition 50 will be amended accordingly.

The defendant contended that the references to extremism in the heading and in conditions 50 and 51 should be amended to refer to “violent extremism”. It was noted that in the THRO Act, “extremism” is not referred to without being qualified by the word “violent”. This was in effect said to reflect the fact that views might be described as being extremist, including political or religious views that the majority do not hold, but these views do not necessarily have associated with them violence or the promotion of violence. Without conceding that the THRO Act was concerned with preventing “violent extremism” as opposed to “serious terrorism offences”, it was submitted that it was in keeping with democratic respect for freedom of religion and the objects of the Act that the conditions imposed as part of an ESO should regulate violent extremism rather than extremism. In addition, it was said that including the qualifying word “violent” would provide greater certainty and promote the defendant’s compliance with the conditions.

The plaintiff submitted that the qualification “violent” was not necessary in relation to “extremist material” in condition 51 given the definition of those words in the definition section of the conditions which relevantly refers to “violent extremism”. In addition, it was submitted that the risk presented by the defendant was not limited to “violent” acts or accessing “violent” extremist material and reference was made to [322] and [323] of the Final Judgment and thus it would be inappropriate to limit the definition in the manner suggested by the defendant.

In this regard, I accept the defendant’s submissions. It is important to observe that the word “extremism” does not necessarily relate only to violent extremism or serious terrorism offences. Many political views held by citizens or residents of this country could be described as “extreme” or “tending to the extreme” without any suggestion that those citizens or residents would engage in, or support the use of, violence in order to further those views, notwithstanding that the views could legitimately be described as “extremist”. A similar comment can be made concerning religious, ethical, sociological or scientific views that are not be shared by the majority of persons in the community. It is, in my view, not only appropriate but also important not to include in the conditions reference to “extremism” which is unrelated to violence or other conduct which could constitute a serious terrorism offence. Accordingly, I propose to insert in the heading and in conditions 50 and 51 qualifications to ensure that the conditions are clear that extremism which is unrelated to violence or other conduct which could constitute a serious terrorism offence is not intended to be referred to in the conditions. This approach is consistent, in my view, with the provisions, scope and purpose of the THRO Act and my findings and conclusions in the Final Judgment, including those at [322] and [323].

For similar reasons, while it may be accepted that the definition of “Extremist material” in Part P: Definitions relevantly limits that expression to violent extremist material, it is appropriate in my view to use the term “prohibited extremist material” and provide the definition for this term.

In relation to condition 51(b), the defendant contends that this paragraph should be revised so as to read:

It was submitted by the defendant that this would remove the vague language in the existing form of the paragraph and be consistent with the objects of the THRO Act. The plaintiff submitted that the defendant’s proposed wording was inappropriate as it would require the enforcement officer to form a reasonable belief in a causal link between the material and an increase in the defendant’s risk of committing a serious terrorism offence.

I accept that the wording proposed by the defendant in relation to condition 51(b) is too restrictive. The existing wording requires that the enforcement officer have reasons related to concerns regarding either violence or the defendant’s risk of committing a serious terrorism offence. While concerns regarding the defendant’s risk of committing a serious terrorism offence are obviously related to the relevant risk posed by the defendant, concerns regarding violence appear to me to be potentially unrelated to that risk. Accordingly, in the context of the particular circumstances of the defendant, the word “violence” in par (b) should be replaced by “violent extremism” in order to link appropriately the reasons to the risk posed by the defendant.

Further in relation to the definition of “extremist material”, I accept the defendant’s submission that “hate speech” is of so uncertain a meaning that it should not be included in the revised definition of “prohibited extremist material”. The expression “hate speech” has been used to refer to various forms of vilification as defined in a number of Acts: see for example Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105; [2004] FCAFC 16 at [57] and Jones v Trad (2013) 86 NSWLR 241; [2013] NSWCA 389 at [102]. Nonetheless, it is not an expression that is defined or used, for example, in the Anti-Discrimination Act 1977 (NSW) or the Racial Discrimination Act 1975 (Cth) in not uncommon usage. In common usage and absent a clear definition, “hate speech” can sometimes be used to mean as little as a view or comment on certain topics which a hearer or reader rejects or disagrees with, more or less intensely. Its undefined use in relation to conditions imposed under s 29 of the THRO Act in this case is inappropriate. The risk posed by the defendant can, in my view, be appropriately managed and monitored if the definition of “prohibited extremist material” is limited to the other types of material and examples given in Part P. It follows that the references to “hate speech” should be deleted.

Finally, the defendant contended that example 6 of “extremist material” in Part P should be deleted. Example 6 is “suspicious content regarding use or sale of chemicals online”. While there may be difficulties if this purported to be a definition of “extremist material”, it does not appear to me to be inappropriate to include it in a list of examples of what may fall within the description of “prohibited extremist material” which is defined elsewhere. Consequently, I propose not to delete example 6 from the examples given in relation to “prohibited extremist material” in Part P.

Accordingly, I intend to amend Part O of the conditions so that it reads:

In addition, where the expression “extremist material” is used in Part P, it will be amended to “prohibited extremist material” and the definition and examples will be amended to remove the references to “hate speech”.

It appears from par 89 of the defendant’s written submissions filed 20 April 2021 that the defendant would accept the definition of “digital blueprint” in Part P of the conditions being amended so that it referred only to the definition of that term in the relevant Acts referred to without setting out the actual wording of the definitions. This is an appropriate course and I propose to adopt it.

Currently in Part P, “enforcement officer” is defined as meaning “a Corrective Services Officer or Police Officer”. This is almost identical to the definition of that term in s 4(1) of the THRO Act which reads:

The defendant submitted that the definition in Part P should be amended so as to reflect the evidence as to the officers who are, in fact, responsible for supervising persons subject to ESOs. On this basis, it was contended that the definition should read “a Corrective Services Officer from the Terrorism High Risk Offender Unit or Police Officer from the Terrorism High Risk Offender Unit”.

In light of the definition of the term in the THRO Act itself and the potential for confusion or delay if an enforcement officer’s ability to give directions or otherwise supervise the defendant under the ESO depended on a matter such as the unit to which a Corrective Services Officer or a Police Officer was administratively assigned, I am of the view that the definition of “Enforcement Officer” should not be amended as proposed by the defendant. Nonetheless, it would be appropriate to make clear that the “Enforcement Officer” referred to in the conditions is the same as that referred to in the order by which the conditions are imposed. Accordingly, the following words will be added to the definition: “responsible for the supervision of the defendant for the time being”.

Both parties have enjoyed a measure of success in relation to this application. Further, both parties’ positions were reasonable. In all the circumstances, it appears to me that the actual outcome would be fairly and appropriately reflected in an order that each party pay his or its own costs of the application. If either party, having considered these reasons for judgment, wishes to make an application for a different costs order, this may be done by notice of motion filed within 14 days after orders are entered, under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW).

For these reasons, the Court orders: