The Australian Federal Police have obtained their first interim control order (ICO) against “Jihad Jack” Thomas under Division 104 of the Criminal Code 1995 (Cw) (these links are very slow). Under section 104.4(1)(c), the Court must be satisfied (on the balance of probabilities, not beyond reasonable doubt) either (a) that making the order would substantially assist in preventing a terrorist act or (b) that the person has provided training to, or received training from, a listed terrorist organisation.

In Thomas’s case, it is alleged that he has received training from a listed terrorist organisation (al Qaeda) and that would be a sufficient basis for the ICO.

The ICO must be obtained with the prior consent of the Attorney-General (s. 104.2(1)), is obtained ex parte (not upon notice to the defendant) and consequently is an interim order only, in this case until 1 September 2006. On that date all parties will attend the Court which will then, after hearing evidence and argument, decide if a “confirmed control order” (CCO) should be made for a period up to 12 months. Under s. 104.5, the an Order can impose “obligations, prohibitions and restrictions “.

Attorney-General Ruddock says Thomas is the subject of a curfew from midnight to 5am, and will have to report to police three days a week. “That is Monday, Wednesday and Saturday, so as to avoid conflict with any religious obligations,” he said. He also will need written approval to make telephone calls.”

Successive CCOs can be made. At any time after the CCO is made, the Defendant or the AFP may apply to the Court to vary or revoke the CCO. A breach of a CCO by the Defendant is a criminal offence carrying a maximum of five years jail.

I would expect that a full-scale attack will be made on these laws involving a challenge to their constitutional validity. The matter would then be removed to the High Court fairly quickly. In the meantime, (probably) a “temporary” CCO would stay in place until the High Court decision.

Peter Fray

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