New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Crimes (Criminal Organisations
Control) Bill 2009
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Extraterritorial operation 4
Part 2 Declared organisations
5 Eligible Judges 5
6 Commissioner may apply for declaration 5
7 Publication of notice of application 6
8 Submissions at the hearing 6
9 Eligible Judge may make declaration 7
10 Notice of declaration 8
Crimes (Criminal Organisations Control) Bill 2009
Contents
Page
11 Duration of declaration 8
12 Revocation of declaration 8
13 Conduct of hearings of applications for declarations
under this Part 9
Part 3 Control of members of declared organisations
Division 1 Interim control orders
14 Court may make interim control order 10
15 When does an interim control order take effect? 10
16 Notice of making of interim control order 10
17 Interim control order ceases when final control order
made or served 11
18 Expedited hearing in cases of hardship 11
Division 2 Control orders
19 Court may make control order 12
20 Person to whom order relates may appear at the hearing 13
21 Form of control order 13
22 When does a control order take effect? 13
23 Duration of control order 13
24 Right of appeal 14
25 Variation or revocation of control order 14
Division 3 Consequences of making of interim control
orders and control orders
26 Association between members of declared organisations
subject to interim control order or control order 15
27 Prohibition on carrying on of certain activities when
interim control order or control order takes effect 16
Part 4 Miscellaneous
28 Criminal intelligence 18
29 Protected submission 18
30 Criminal organisations register 19
31 Attorney General to be notified 19
32 Standard of proof 19
33 Delegation 20
34 Immunity from liability 20
35 Protection of exercise of certain functions 20
36 Proceedings for offences 21
37 Rules of court 21
38 Regulations 21
Contents page 2
Crimes (Criminal Organisations Control) Bill 2009
Contents
Page
39 Report to Ombudsman on exercise of powers and
monitoring by Ombudsman 22
40 Review of Act 23
Schedule 1 Amendment of Acts 24
Contents page 3
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2009
New South Wales
Crimes (Criminal Organisations
Control) Bill 2009
Act No , 2009
An Act to provide for the making of declarations and orders for the purpose of
disrupting and restricting the activities of criminal organisations and their members;
to make related amendments to various Acts; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Crimes (Criminal Organisations Control) Bill 2009
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Crimes (Criminal Organisations Control) Act 2009.
2 Commencement
This Act commences on the date of assent to this Act.
3 Definitions
(1) In this Act:
associate with means:
(a) to be in company with, or
(b) to communicate with by any means (including by post, facsimile,
telephone and email or any other form of electronic
communication).
Commissioner means the Commissioner of Police.
control order means an order of the Court under section 19.
controlled member of a declared organisation means a person to whom
an interim control order, or a control order, that is in force relates.
Court means the Supreme Court.
criminal intelligence means information relating to actual or suspected
criminal activity (whether in this State or elsewhere) the disclosure of
which could reasonably be expected:
(a) to prejudice criminal investigations, or
(b) to enable the discovery of the existence or identity of a
confidential source of information relevant to law enforcement,
or
(c) to endanger a person's life or physical safety.
declared organisation means an organisation in respect of which a
declaration under Part 2 that is in force relates.
eligible Judge--see section 5.
exercise a function includes perform a duty.
function includes a power, authority or duty.
interim control order means an interim control order under section 14.
member of an organisation includes:
(a) in the case of an organisation that is a body corporate--a director
and an officer of the body corporate, and
Page 2
Crimes (Criminal Organisations Control) Bill 2009 Clause 3
Preliminary Part 1
(b) in any case:
(i) an associate member or prospective member (however
described) of the organisation, and
(ii) a person who identifies himself or herself, in some way, as
belonging to the organisation, and
(iii) a person who is treated by the organisation or persons who
belong to the organisation, in some way, as if he or she
belonged to the organisation.
organisation means any incorporated body or unincorporated group
(however structured), whether or not:
(a) the body or group is based outside New South Wales, or
(b) the body or group consists of persons who are not ordinarily
resident in New South Wales.
protected submission--see section 8 (7).
senior police officer means a police officer of or above the rank of
inspector.
serious criminal activity means any of the following:
(a) obtaining material benefits from conduct that constitutes a
serious indictable offence,
(b) obtaining material benefits from conduct engaged in outside New
South Wales (including outside Australia) that, if it occurred in
New South Wales, would constitute a serious indictable offence,
(c) committing a serious violence offence,
(d) engaging in conduct outside New South Wales (including outside
Australia) that, if it occurred in New South Wales, would
constitute a serious violence offence.
serious violence offence means an offence punishable by imprisonment
for life or for a term of 10 years or more, where the conduct constituting
the offence involves:
(a) loss of a person's life or serious risk of loss of a person's life, or
(b) serious injury to a person or serious risk of serious injury to a
person, or
(c) serious damage to property in circumstances endangering the
safety of any person, or
(d) perverting the course of justice (within the meaning of Part 7 of
the Crimes Act 1900) in relation to any conduct that, if proved,
would constitute a serious violence offence as referred to in
paragraph (a), (b) or (c).
(2) Notes included in this Act do not form part of this Act.
Page 3
Clause 4 Crimes (Criminal Organisations Control) Bill 2009
Part 1 Preliminary
4 Extraterritorial operation
It is the intention of the Parliament that this Act apply within the State
and outside the State to the full extent of the extraterritorial legislative
capacity of the Parliament.
Page 4
Crimes (Criminal Organisations Control) Bill 2009 Clause 5
Declared organisations Part 2
Part 2 Declared organisations
5 Eligible Judges
(1) In this Part:
eligible Judge means a Judge in relation to whom a consent under
subsection (2) and a declaration under subsection (3) are in force.
(2) A Judge of the Court may, by instrument in writing, consent to being the
subject of a declaration by the Attorney General under subsection (3).
(3) The Attorney General may, by instrument in writing, declare Judges in
relation to whom consents are in force under subsection (2) to be
eligible Judges for the purposes of this Part.
(4) An eligible Judge has, in relation to the exercise of a function conferred
on an eligible Judge by this Part, the same protection and immunity as
a Judge of the Court has in relation to proceedings in the Court.
(5) A Judge who has given consent under subsection (2) may, by instrument
in writing, revoke the consent.
(6) The Attorney General may, by instrument in writing, amend or revoke
a declaration under subsection (3).
6 Commissioner may apply for declaration
(1) The Commissioner may apply to an eligible Judge for a declaration (or
renewal of a declaration) under this Part that a particular organisation is
a declared organisation for the purposes of this Act.
(2) The application must:
(a) be in writing, and
(b) identify the particular organisation in respect of which the
declaration is sought, and
(c) describe the nature of the organisation and any of its
distinguishing characteristics, and
(d) specify the names (or names by which they are commonly
known) of any persons that the Commissioner has reasonable
grounds to believe are members of the organisation, and
(e) set out the grounds on which the declaration is sought, and
(f) set out the information supporting the grounds on which the
declaration is sought, and
(g) set out details of any previous application for a declaration in
respect of the organisation and the outcome of that application,
and
Page 5
Clause 7 Crimes (Criminal Organisations Control) Bill 2009
Part 2 Declared organisations
(h) be supported by an affidavit from the Commissioner, or affidavits
from one or more other senior police officers, verifying the
contents of the application.
(3) The application may identify the organisation by specifying the name of
the organisation or the name by which the organisation is commonly
known or by providing other particulars about the organisation.
Note. Section 28 contains provisions relating to the disclosure of information in
an application or at a hearing under this Act that is criminal intelligence.
7 Publication of notice of application
If the Commissioner makes an application under this Part in relation to
an organisation, the Commissioner must as soon as practicable (but no
later than 3 days) after the application is made publish a notice in the
Gazette and at least one newspaper circulating throughout the State:
(a) specifying that an application has been made for a declaration
under this Part in respect of that organisation, and
(b) describing the consequences for a member of the organisation if
the declaration is made and an interim control order is made in
relation to the member, and
(c) inviting members of that organisation and other persons who may
be directly affected (whether or not adversely) by the outcome of
the application to make submissions to the eligible Judge at a
hearing to be held on a date specified in the notice that has been
determined by the eligible Judge.
8 Submissions at the hearing
(1) A member of the organisation specified in an application under this Part
may be present and make submissions in relation to the application at
the hearing of the application, subject to subsection (3).
(2) Any member of the organisation who was not specified in the
application under this Part and any other person who may be directly
affected (whether or not adversely) by the outcome of the application
may, with the leave of the eligible Judge, be present and make
submissions at the hearing, subject to subsection (3).
(3) The Commissioner may object to any person referred to in subsection
(1) or (2) being present during any part of the hearing in which
information classified by the Commissioner as criminal intelligence is
disclosed.
(4) A person referred to in subsection (1) or (2) who does not wish to be
present at the hearing may make a protected submission to the eligible
Judge in private.
Page 6
Crimes (Criminal Organisations Control) Bill 2009 Clause 9
Declared organisations Part 2
(5) The eligible Judge is to deal with an objection under subsection (3) in
accordance with section 28.
(6) The eligible Judge is to deal with a protected submission under
subsection (4) in accordance with section 29.
(7) In this Act:
protected submission means a submission made by a person who has
reasonable grounds to believe that he or she may be subjected to action
comprising or involving injury, damage, loss, intimidation or
harassment in reprisal for making the submission.
9 Eligible Judge may make declaration
(1) If, on the making of an application by the Commissioner under this Part
in relation to a particular organisation, the eligible Judge is satisfied
that:
(a) members of the organisation associate for the purpose of
organising, planning, facilitating, supporting or engaging in
serious criminal activity, and
(b) the organisation represents a risk to public safety and order in this
State,
the eligible Judge may make a declaration under this Part that the
particular organisation is a declared organisation for the purposes of this
Act.
(2) In considering whether or not to make a declaration, the eligible Judge
may have regard to any of the following:
(a) any information suggesting that a link exists between the
organisation and serious criminal activity,
(b) any criminal convictions recorded in relation to current or former
members of the organisation,
(c) any information suggesting that current or former members of the
organisation have been, or are, involved in serious criminal
activity (whether directly or indirectly and whether or not such
involvement has resulted in any criminal convictions),
(d) any information suggesting that members of an interstate or
overseas chapter or branch of the organisation associate for the
purpose of organising, planning, facilitating, supporting or
engaging in serious criminal activity,
(e) any submissions made in relation to the application by the
Attorney General or as referred to in section 8,
(f) any other matter the eligible Judge considers relevant.
Page 7
Clause 10 Crimes (Criminal Organisations Control) Bill 2009
Part 2 Declared organisations
(3) A declaration may be made whether or not any of the persons referred
to in section 8 are present or make submissions.
(4) The eligible Judge may, for the purposes of making a declaration, be
satisfied that members of an organisation associate for the purpose of
organising, planning, facilitating, supporting or engaging in serious
criminal activity:
(a) whether or not all the members associate for that purpose or only
some of the members (provided that, if the eligible Judge is
satisfied that only some of the members associate for that
purpose, the eligible Judge must be satisfied that those members
constitute a significant group within the organisation, either in
terms of their numbers or in terms of their capacity to influence
the organisation or its members), and
(b) whether or not members associate for the purpose of organising,
planning, facilitating, supporting or engaging in the same serious
criminal activities or different ones, and
(c) whether or not the members also associate for other purposes.
10 Notice of declaration
As soon as practicable after making a declaration under this Part, the
Commissioner must publish notice of the declaration in the Gazette and
in at least one newspaper circulating throughout the State.
11 Duration of declaration
(1) A declaration under this Part takes effect on the day notice of it is
published in the Gazette or a later day specified in the declaration.
(2) The declaration remains in force for a period of 3 years after the day on
which it takes effect (unless it is sooner revoked or renewed).
(3) A change in the name or membership of a declared organisation does
not affect the declaration.
12 Revocation of declaration
(1) The eligible Judge may, at any time, revoke a declaration under this
Part:
(a) on the request in writing of the Commissioner, or
(b) on application by a member of the organisation.
(2) An application under subsection (1) (b) must:
(a) be in writing, and
(b) set out the grounds on which revocation is sought, and
Page 8
Crimes (Criminal Organisations Control) Bill 2009 Clause 13
Declared organisations Part 2
(c) set out the information supporting the grounds on which
revocation is sought, and
(d) be supported by an affidavit from the applicant verifying the
contents of the application.
(3) The applicant must notify the Commissioner of the making of the
application as soon as practicable after it is made.
Note. Section 31 requires the Commissioner to notify the Attorney General of
the application.
(4) A declaration may be revoked under subsection (1) (b) only if the
eligible Judge is satisfied that there has been such a substantial change
in the nature or membership of the organisation that:
(a) members of the organisation no longer associate for the purpose
of organising, planning, facilitating, supporting or engaging in
serious criminal activity, and
(b) the organisation no longer represents a risk to public safety and
order in the State.
(5) The Commissioner must, as soon as practicable after a declaration is
revoked:
(a) publish notice of the revocation in the Gazette and in at least one
newspaper circulating generally throughout the State, and
(b) give notice of the revocation to the Attorney General and to any
person who made a submission at the hearing at which the
declaration was made.
(6) An interim control order or control order relating to a member of an
organisation that is the subject of a revoked declaration ceases to have
effect on revocation of the declaration.
(7) If the eligible Judge who made a declaration under this Part has died,
has ceased to be an eligible Judge or is absent, a power exercisable by
that eligible Judge under this section may be exercised by any other
eligible Judge.
13 Conduct of hearings of applications for declarations under this Part
(1) The rules of evidence do not apply to the hearing of an application for a
declaration under this Part.
(2) If an eligible Judge makes a declaration or decision under this Part, the
eligible Judge is not required to provide any grounds or reasons for the
declaration or decision (other than to a person conducting a review
under section 39 if that person so requests).
Note. If reasons are provided that include criminal intelligence, section 28
applies.
Page 9
Clause 14 Crimes (Criminal Organisations Control) Bill 2009
Part 3 Control of members of declared organisations
Part 3 Control of members of declared organisations
Division 1 Interim control orders
14 Court may make interim control order
(1) The Court may, on application by the Commissioner, make an interim
control order relating to one or more persons specified in the application
pending the hearing and final determination of an application for a
control order confirming (or confirming with variations) the interim
control order.
(2) The grounds of the application must be supported by an affidavit from
the Commissioner, or affidavits from one or more other senior police
officers, verifying the contents of the application.
(3) The Court is to make an interim control order in relation to a person if
it is satisfied that the application and any further information supplied
by the Commissioner satisfy the requirements under section 19 (1) for
making a control order in relation to the person.
(4) The interim control order may be made in the absence of, and without
notice to, the person in relation to whom the order is to be made (or their
representatives).
(5) If the Court makes an interim control order, it must fix the date on
which, and the time at which, the hearing of the application for a
control order in relation to the person is to be heard.
15 When does an interim control order take effect?
An interim control order takes effect on the day on which notice of the
order is served personally on the person to whom it relates under
section 16.
16 Notice of making of interim control order
(1) The Commissioner must, within 28 days after the making of an interim
control order, serve notice of the order personally on the person to
whom it relates.
(2) The notice must:
(a) subject to subsection (3), include a statement of the grounds on
which the order was made, and
(b) set out an explanation of the effect of sections 26 and 27, and
(c) advise the person of the names of any other persons known by the
Commissioner to be members of the same declared organisation
of which that person is a member and to whom an interim control
order or control order relates, and
Page 10
Crimes (Criminal Organisations Control) Bill 2009 Clause 17
Control of members of declared organisations Part 3
(d) set out an explanation of:
(i) the right to object to the making of the order at the hearing
of the application for the control order, and
(ii) the procedure to be followed in notifying the Court before
the hearing of the grounds of objection (the notice of
objection) and of the need to verify the grounds by
affidavit, and
(e) state the date on which, and the time at which, the hearing of the
application for the control order is to be heard.
(3) A statement of the grounds on which an interim control order has been
made must not contain information that must not be disclosed in
accordance with section 28.
(4) A copy of the affidavit verifying the grounds on which the application
was made must be attached to the interim control order unless
disclosure of information included in the affidavit would be in breach of
section 28.
(5) If disclosure of information included in the affidavit would be in breach
of section 28, an edited copy of the affidavit, from which the
information that cannot be disclosed has been removed or erased, may
be attached to the notice of the interim control order.
17 Interim control order ceases when final control order made or served
(1) An interim control order remains in force until:
(a) it is revoked, or
(b) it ceases to have effect under subsection (2), or
(c) the application for a control order confirming the interim control
order is withdrawn or dismissed,
whichever first occurs.
(2) If a control order is made confirming an interim control order (whether
with or without variation), the interim control order ceases to have
effect:
(a) if the person to whom it relates is present in court--when the
control order is made, or
(b) in any other case--when the person is served personally with a
copy of the control order.
18 Expedited hearing in cases of hardship
(1) A person on whom notice of the making of an interim control order is
served under section 16 (1) may request the Court to hear the
Page 11
Clause 19 Crimes (Criminal Organisations Control) Bill 2009
Part 3 Control of members of declared organisations
application for the control order confirming the interim control order at
an earlier date determined by the Court than that specified in the notice.
(2) The Court must hear the application for the control order as
expeditiously as possible if satisfied by the person concerned that, in the
special circumstances of the case, he or she will suffer undue hardship
if the hearing of the application for the control order is delayed.
Division 2 Control orders
19 Court may make control order
(1) The Court may make a control order in relation to a person on whom
notice of an interim control order has been served under section 16 if the
Court is satisfied that:
(a) the person is a member of a particular declared organisation, and
(b) sufficient grounds exist for making the control order.
(2) The Court may:
(a) make a control order confirming or confirming with variations
the interim control order, or
(b) revoke the interim control order.
(3) In considering whether or not there are sufficient grounds to make the
control order in relation to the person, the Court is to take into account:
(a) the affidavit from the Commissioner, or affidavits from one or
more other senior police officers, that verified the contents of the
application for the interim control order concerned, and
(b) the affidavit provided by the person with the notice of objection
referred to in section 16, and
(c) any other information provided by the Commissioner or person
to whom the order relates at the hearing.
(4) The control order may be made whether or not the person concerned is
present at the hearing of the application.
(5) If the person concerned is not present at the hearing, the Commissioner
is to cause a copy of the control order to be served personally on the
person.
(6) The Court may, on making a control order in relation to a person, make
any consequential or ancillary orders it thinks fit.
(7) Without limiting subsection (6), an order may be made, if in the opinion
of the Court the circumstances of the case require:
(a) if the person satisfies the Court that there is a good reason why he
or she should be allowed to associate with a particular controlled
Page 12
Crimes (Criminal Organisations Control) Bill 2009 Clause 20
Control of members of declared organisations Part 3
member--exempting the person from the operation of section 26
to the extent, and subject to the conditions, specified by the
Court, or
(b) exempting the person from the operation of section 27 for a
period specified by the Court to enable the person to organise his
or her affairs.
20 Person to whom order relates may appear at the hearing
The person to whom the control order relates may appear at the hearing
of the application and make submissions in relation to the application.
21 Form of control order
(1) A control order must:
(a) specify the person to whom it relates, and
(b) subject to subsection (2)--include a statement of the grounds on
which the order has been made, and
(c) set out an explanation of the right of appeal under section 24.
(2) A statement of the grounds on which a control order has been made
must not contain information that must not be disclosed in accordance
with section 28.
(3) A copy of the affidavit verifying the grounds on which the order was
made must be attached to the control order unless disclosure of
information included in the affidavit would be in breach of section 28.
(4) If disclosure of information included in the affidavit would be in breach
of section 28, an edited copy of the affidavit, from which the
information that cannot be disclosed has been removed or erased, may
be attached to the control order.
22 When does a control order take effect?
A control order takes effect:
(a) if the person to whom it relates is present in court--when the
control order is made, or
(b) in any other case--when the person is served personally with a
copy of the control order.
23 Duration of control order
A control order remains in force until it is revoked.
Page 13
Clause 24 Crimes (Criminal Organisations Control) Bill 2009
Part 3 Control of members of declared organisations
24 Right of appeal
(1) The Commissioner or the controlled member may appeal to the Court
of Appeal against a decision of the Court in relation to the making of a
control order.
(2) An appeal lies as of right on a question of law and with leave on a
question of fact.
(3) An appeal as of right must be made within 28 days after the date on
which the decision was made unless the Court of Appeal gives leave for
it to be made after that time.
(4) The making of an appeal under this section does not affect the operation
of the control order to which the appeal relates.
(5) On an appeal, the Court of Appeal may:
(a) confirm, vary or reverse the decision the subject of the appeal,
and
(b) make any consequential or ancillary order.
25 Variation or revocation of control order
(1) The Court may at any time vary or revoke a control order on application:
(a) by the Commissioner, or
(b) by the person to whom it relates.
(2) An application for variation or revocation of a control order may only
be made by the person to whom the order relates with the leave of the
Court and leave is only to be granted if the Court is satisfied there has
been a substantial change in the relevant circumstances since the order
was made or last varied.
(3) The Court must, before varying or revoking a control order under this
section:
(a) allow all parties a reasonable opportunity to be heard on the
matter, and
(b) have regard to the same factors that the Court is required to have
regard to in considering whether or not to make a control order
and in considering the terms of a control order.
(4) If an application for the variation or revocation of a control order is
made by the person to whom the order relates, the application must be
supported by oral evidence given on oath.
(5) The Court is to give notice of the variation or revocation of a control
order to the Commissioner (if the Commissioner is not present when the
order is varied or revoked) and to the Attorney General.
Page 14
Crimes (Criminal Organisations Control) Bill 2009 Clause 26
Control of members of declared organisations Part 3
Division 3 Consequences of making of interim control orders
and control orders
26 Association between members of declared organisations subject to
interim control order or control order
(1) A controlled member of a declared organisation who associates with
another controlled member of the declared organisation is guilty of an
offence.
Maximum penalty:
(a) for a first offence--imprisonment for 2 years, and
(b) for a second or subsequent offence--imprisonment for 5 years.
(2) A person may be guilty of an offence under subsection (1) in respect of
associations with the same person or with different people.
(3) It is a defence to a prosecution for an offence under subsection (1) if the
defendant establishes that he or she did not know, and could not
reasonably be expected to have known, that the other person with whom
he or she associated was a controlled member of the declared
organisation.
(4) It is a defence to a prosecution for an offence under subsection (1) if the
association is in accordance with an exemption under section 19 (7) (a).
(5) The following forms of associations are to be disregarded for the
purposes of this section in its application to a defendant to whom an
interim control order relates if the defendant proves that the association
was reasonable in the circumstances:
(a) associations between close family members,
(b) associations occurring in the course of a lawful occupation,
business or profession,
(c) associations occurring at a course of training or education of a
kind prescribed by the regulations between persons enrolled in
the course,
(d) associations occurring at a rehabilitation, counselling or therapy
session of a kind prescribed by the regulations,
(e) associations occurring in lawful custody or in the course of
complying with a court order,
(f) other associations of a kind prescribed by the regulations.
(6) For the avoidance of doubt, in proceedings for an offence against this
section, it is not necessary for the prosecution to prove that the
defendant associated with another person for any particular purpose or
that the association would have led to the commission of any offence.
Page 15
Clause 27 Crimes (Criminal Organisations Control) Bill 2009
Part 3 Control of members of declared organisations
(7) For the purposes of this section, a control order made in relation to a
person is conclusive evidence that the person is a controlled member of
the particular declared organisation to which the control order relates
and of the terms of the order (including any exemptions from the
operation of this section under section 19 (7) (a)).
(8) For the purposes of this section, a person is a close family member of
another person if:
(a) the person is a spouse or former spouse of the other or is, or has
been, in a domestic relationship with the other, or
(b) the person is a parent or grandparent of the other (whether by
blood or by marriage), or
(c) the person is a brother or sister of the other (whether by blood or
by marriage), or
(d) the person is a guardian or carer of the other.
(9) In this section:
domestic relationship has the same meaning as in the Property
(Relationships) Act 1984.
spouse--a person is the spouse of another if they are legally married.
27 Prohibition on carrying on of certain activities when interim control
order or control order takes effect
(1) Any authorisation to carry on a prescribed activity that is held by a
controlled member of a declared organisation is automatically
suspended on the taking effect of an interim control order in relation to
the person.
(2) The authorisation is suspended until the interim control order is
confirmed (or confirmed with variations) by a control order or is
revoked.
(3) On confirmation of the interim control order by a control order, the
authorisation is revoked.
(4) A controlled member of a declared organisation is prohibited from
applying for any authorisation to carry on a prescribed activity so long
as an interim control order or control order in relation to the member is
in force.
(5) A suspension or revocation of an authorisation in accordance with this
section is effected despite any other Act or any law, award or industrial
or other agreement affecting the employment of the person holding the
authorisation, and neither the Crown nor the authority that issues an
authorisation incurs any liability because of such a suspension or
revocation.
Page 16
Crimes (Criminal Organisations Control) Bill 2009 Clause 27
Control of members of declared organisations Part 3
(6) In this section:
authorisation includes the licensing, registration, approval,
certification or any other form of authorisation of a person required by
or under legislation for the carrying on of an occupation or activity.
occupation means an occupation, trade, profession or calling of any
kind that may only be carried on by a person holding an authorisation.
prescribed activity means the following:
(a) operating a casino within the meaning of the Casino Control Act
1992, or being a special employee within the meaning of Part 4
of that Act,
(b) carrying on a security activity within the meaning of the Security
Industry Act 1997,
(c) carrying on the business of a pawnbroker within the meaning of
the Pawnbrokers and Second-hand Dealers Act 1996,
(d) carrying on business as a commercial agent or private inquiry
agent within the meaning of the Commercial Agents and Private
Inquiry Agents Act 2004,
(e) possessing or using a firearm within the meaning of the Firearms
Act 1996 or carrying on business as a firearms dealer within the
meaning of that Act,
(f) operating a tow truck within the meaning of the Tow Truck
Industry Act 1998,
(g) carrying on business as a dealer within the meaning of the Motor
Dealers Act 1974,
(h) carrying on business as a repairer within the meaning of the
Motor Vehicle Repairs Act 1980,
(i) selling or supplying liquor within the meaning of the Liquor Act
2007,
(j) carrying on the business of a bookmaker within the meaning of
the Racing Administration Act 1998,
(k) carrying out the activities of an owner, trainer, jockey,
stablehand, bookmaker, bookmaker's clerk or another person
associated with racing who is required to be registered or licensed
under the Thoroughbred Racing Act 1996,
(l) carrying out the activities of an owner, trainer or other person
associated with greyhound or harness racing who is required to
be registered under the Greyhound and Harness Racing
Administration Act 2004,
(m) any other activity prescribed by the regulations.
Page 17
Clause 28 Crimes (Criminal Organisations Control) Bill 2009
Part 4 Miscellaneous
Part 4 Miscellaneous
28 Criminal intelligence
(1) This section applies to and in respect of:
(a) an application for a declaration made to, and the hearing of the
application by, an eligible Judge under Part 2, and
(b) an application for the making, variation or revocation of an
interim control order or control order made to, and the hearing of
the application by, the Court under Part 3.
(2) In this section, the eligible Judge and the Court are referred to as the
determining authority.
(3) A determining authority is to take steps to maintain the confidentiality
of information that the determining authority considers to be properly
classified by the Commissioner as criminal intelligence, including steps
to receive evidence and hear argument about the information in private
in the absence of the parties to the proceedings and their representatives
and the public.
(4) If the determining authority considers that the information cannot
properly be classified as criminal intelligence, the determining authority
must ask the Commissioner whether the Commissioner wishes to
withdraw the information from consideration.
(5) Information that is withdrawn by the Commissioner must not be
disclosed to any person (except a person conducting a review under this
Part or the Attorney General or a person to whom the Commissioner or
Attorney General authorises disclosure).
(6) Despite subsection (3), the determining authority may disclose to the
Attorney General, a person conducting a review under this Part, a court
or a person to whom the Commissioner authorises disclosure any
information the determining authority considers to be properly
classified by the Commissioner as criminal intelligence.
29 Protected submission
(1) An eligible Judge is to take steps to maintain the confidentiality of a
protected submission, including steps to receive evidence and hear the
submission in private in the absence (except as provided by subsection
(2)) of any other person referred to in section 8 (1) or (2) and their
representatives.
(2) The eligible Judge is to advise the Commissioner and the Attorney
General that a protected submission is to be made and the
Commissioner and the Attorney General are entitled to be present when
it is made.
Page 18
Crimes (Criminal Organisations Control) Bill 2009 Clause 30
Miscellaneous Part 4
30 Criminal organisations register
(1) The Commissioner must keep a register of information about
declarations and orders made under this Act (the register of criminal
organisations).
(2) The register may contain any of the following information:
(a) the name of any declared organisation (or the name by which it is
commonly known),
(b) the name of any controlled member of the declared organisation
(or the name by which the controlled member is commonly
known).
(3) Information relating to a control order is not to be published on the
register until after the last day on which the person to whom the order
relates may appeal against the making of the order and (if the person to
which the order relates does appeal) until the appeal is determined or
withdrawn.
(4) Information contained in the register may be provided to members of
the public in any other manner approved by the Commissioner.
(5) Without limiting subsection (4), the Commissioner may publish any
information contained in the register in a newspaper circulating in the
State.
31 Attorney General to be notified
(1) The Commissioner must give notice of any application under Part 2 or
3 to the Attorney General as soon as practicable after it is made or the
Commissioner receives notice of the application.
(2) The Commissioner is to provide the Attorney General with a copy of the
application (including any information classified by the Commissioner
as criminal intelligence) if the Attorney General so requests.
(3) The Attorney General is entitled to be present and to make submissions
at the hearing of the application.
32 Standard of proof
(1) Any question of fact to be decided in proceedings under this Act is to be
decided on the balance of probabilities.
(2) This section does not apply in relation to proceedings for an offence
against this Act.
Page 19
Clause 33 Crimes (Criminal Organisations Control) Bill 2009
Part 4 Miscellaneous
33 Delegation
The Commissioner:
(a) may not delegate the function of classifying information as
criminal intelligence for the purposes of this Act except to a
Deputy Commissioner or Assistant Commissioner of Police, and
(b) may not delegate any other function of the Commissioner under
this Act except to a senior police officer.
34 Immunity from liability
No civil or criminal liability attaches to:
(a) the Attorney General, the Commissioner, a police officer or other
person exercising functions under this Act (whether or not under
delegation), or
(b) the Crown,
in respect of an act or omission in good faith in the exercise or
discharge, or purported exercise or discharge, of a function conferred by
or under this Act.
35 Protection of exercise of certain functions
(1) This section applies to any function (a protected function) conferred on
a person under this Act (a protected person) with respect to the making
(or purported making) of any declaration, interim control order or
control order under this Act.
(2) Except as provided by section 24 (Right of appeal), the exercise by any
protected person of any protected function may not be:
(a) challenged, reviewed, quashed or called into question before any
court of law or administrative review body in any proceedings, or
(b) restrained, removed or otherwise affected by any proceedings.
(3) Without limiting subsection (2), that subsection applies whether or not
the proceedings relate to any question involving compliance or
non-compliance, by a protected person, with the provisions of this Act
or the rules of natural justice (procedural fairness).
(4) Accordingly, except as provided by section 24, no court of law or
administrative review body has jurisdiction or power to consider any
question involving compliance or non-compliance, by the protected
person, with those provisions or with those rules so far as they apply to
the exercise of any protected function.
(5) This section has effect despite any provision of any other legislation or
any other law (whether written or unwritten).
Page 20
Crimes (Criminal Organisations Control) Bill 2009 Clause 36
Miscellaneous Part 4
(6) In this section:
exercise of functions includes:
(a) the purported exercise of functions, and
(b) the non-exercise or improper exercise of functions, and
(c) the proposed, apprehended or threatened exercise of functions.
proceedings includes:
(a) proceedings for an order in the nature of prohibition, certiorari or
mandamus or for a declaration or injunction or for any other
relief, and
(b) without limiting paragraph (a), proceedings in the exercise of the
inherent jurisdiction of the Court or the jurisdiction conferred by
section 23 of the Supreme Court Act 1970,
but does not include any investigation or proceedings under the
Independent Commission Against Corruption Act 1988.
36 Proceedings for offences
(1) Except as provided by subsection (2), proceedings for an offence under
this Act are to be dealt with summarily before a Local Court.
(2) A second or subsequent offence under section 26 (Association between
members of declared organisations subject to interim control order or
control order) is to be prosecuted on indictment.
(3) If proceedings for an offence under this Act are dealt with summarily
before a Local Court, the maximum penalty that may be imposed is
100 penalty units or imprisonment for 2 years (or both), or the
maximum penalty provided for the offence, whichever is the lesser.
37 Rules of court
Rules of Court may be made under the Supreme Court Act 1970 for or
with respect to the practice and procedure to be followed in respect of
proceedings under this Act and any matters incidental to, or relating to,
such practice and procedure.
38 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted to
be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
(2) The regulations may create offences punishable by a penalty not
exceeding 100 penalty units.
Page 21
Clause 39 Crimes (Criminal Organisations Control) Bill 2009
Part 4 Miscellaneous
39 Report to Ombudsman on exercise of powers and monitoring by
Ombudsman
(1) For the period of 2 years from the date of commencement of this Act,
the Ombudsman is to keep under scrutiny the exercise of powers
conferred on police officers under this Act.
(2) For that purpose, the Ombudsman may require the Commissioner or
any public authority to provide information about the exercise of those
powers.
(3) The Commissioner is to ensure that the Ombudsman is provided with a
report on:
(a) any declaration made under Part 2 or under an interim control
order or control order, and
(b) the reasons the declaration or order was sought, and
(c) any prosecutions brought under section 26 (Association between
members of declared organisations subject to interim control
order or control order).
(4) The Ombudsman must maintain the confidentiality of information
provided to the Ombudsman that is classified by the Commissioner as
criminal intelligence.
(5) The Ombudsman must, as soon as possible after the expiration of the
2-year period, prepare a report of the Ombudsman's work and activities
under this section and furnish a copy of the report to the Attorney
General and to the Commisssioner.
(6) The Attorney General is to lay (or cause to be laid) a copy of the report
before both Houses of Parliament as soon as practicable after the
Attorney General receives the report.
(7) If a House of Parliament is not sitting when the Attorney General seeks
to lay a report before it, the Attorney General may present copies of the
report to the Clerk of the House concerned.
(8) The report:
(a) is, on presentation and for all purposes, taken to have been laid
before the House, and
(b) may be printed by authority of the Clerk of the House, and
(c) if so printed, is for all purposes taken to be a document published
by or under the authority of the House, and
(d) is to be recorded:
(i) in the case of the Legislative Council, in the Minutes of the
Proceedings of the Legislative Council, and
Page 22
Crimes (Criminal Organisations Control) Bill 2009 Clause 40
Miscellaneous Part 4
(ii) in the case of the Legislative Assembly, in the Votes and
Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of the report by
the Clerk.
40 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of
5 years from the date of assent to this Act.
(3) The Minister, or any person conducting the review on behalf of the
Minister, must maintain the confidentiality of information provided to
the Minister or other person that is classified by the Commissioner as
criminal intelligence.
(4) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 5 years.
Page 23
Crimes (Criminal Organisations Control) Bill 2009
Schedule 1 Amendment of Acts
Schedule 1 Amendment of Acts
1.1 Bail Act 1978 No 161
Section 9 Presumption in favour of bail for certain offences
Insert after section 9 (1) (e):
(e1) an offence under section 26 (Association between
members of declared organisations subject to interim
control order or control order) of the Crimes (Criminal
Organisations Control) Act 2009,
1.2 Criminal Assets Recovery Act 1990 No 23
Section 6 Meaning of "serious crime related activity"
Insert after section 6 (2) (g):
(g1) an offence under section 93T of the Crimes Act 1900, or
1.3 Criminal Procedure Act 1986 No 209
Schedule 1 Indictable offences triable summarily
Insert in appropriate order in Part 4 of Table 1:
18A Crimes (Criminal Organisations Control) Act 2009
An offence under section 26 of the Crimes (Criminal
Organisations Control) Act 2009.
Page 24
[Index] [Search] [Download] [Related Items] [Help]