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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 Explanatory note This explanatory note relates to this Bill as introduced into Parliament. This Bill is cognate with the Crimes (Serious Crime Prevention Orders) Bill 2016. Overview of Bill The objects of this Bill are: (a) to amend the Confiscation of Proceeds of Crime Act 1989 to enable the Supreme Court to make a forfeiture order in respect of the property of a person convicted of a serious criminal offence in substitution for other property that the person used in, or in connection with, the offence that is unavailable for forfeiture, and (b) to amend the Crimes Act 1900 to recast the offence of dealing with property suspected of being proceeds of crime so as to adopt certain provisions of the corresponding offence in the Criminal Code of the Commonwealth, and (c) to amend the Criminal Assets Recovery Act 1990: (i) to enable the Supreme Court to make a forfeiture order in respect of property used in, or in connection with, a serious crime related activity or, if that property is not available for forfeiture, other property of the offender, and (ii) to clarify the circumstances in which an interest in property ceases to be serious crime derived property or illegally acquired property for the purposes of the Act on its sale or disposition, and (d) to amend the Law Enforcement (Powers and Responsibilities) Act 2002 to enable a senior police officer to make a public safety order to prohibit a person from being present at a public event or at premises or another area if the person's presence poses a serious risk to public safety or security, and b2014-116.d21 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Explanatory note (e) to make consequential amendments to the Criminal Procedure Act 1986. Outline of provisions Clause 1 sets out the name (also called the short title) of the proposed Act. Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed by proclamation. Schedule 1 Amendment of Confiscation of Proceeds of Crime Act 1989 No 90 Schedule 1 enables the Supreme Court to make a substituted tainted property declaration in respect of property of a person convicted of a serious criminal offence in cases where other property was used by the offender in, or in connection with, the offence and that other property is not available for forfeiture. The declaration will enable the substituted property to be dealt with under the Act (including for the purposes of forfeiture) as the tainted property instead of the property used in, or in connection with, the serious criminal offence. The Schedule also makes other consequential amendments. Schedule 2 Amendment of Crimes Act 1900 No 40 Schedule 2 substitutes the offence of dealing with property suspected of being proceeds of crime. In particular, the provisions to be inserted: (a) provide for a maximum penalty for the offence of imprisonment for 3 years (if the property concerned is valued under $100,000) and imprisonment for 5 years (if the property concerned is valued at $100,000 or more), and (b) provide for a non-exhaustive list of conduct and circumstances that can constitute reasonable grounds to suspect that property is the proceeds of crime, and (c) allow several contraventions of Part 4AC of the Crimes Act 1900 to be combined in a single charge, and (d) allow the offence to be the subject of an alternative verdict in a trial for an offence against section 193B (Money laundering) of the Crimes Act 1900. Schedule 3 Amendment of Criminal Assets Recovery Act 1990 No 23 Schedule 3: (a) enables the Supreme Court to make a forfeiture order in respect of property (serious crime use property) used in, or in connection with, a serious crime related activity, and (b) enables the Supreme Court to make a substituted serious crime use property declaration in respect of the property of a person who engaged in serious crime related activity involving serious crime use property if that property is unavailable for forfeiture, and (c) requires half of the proceeds of forfeiture orders made in respect of serious crime use property (or substituted serious crime use property) to be paid to the credit of the Victims Support Fund under the Victims Rights and Support Act 2013, and (d) ensures that no provision is made by the Supreme Court in connection with a restraining order for the payment of legal expenses in relation to a particular interest in property if the Supreme Court is satisfied that the interest is an available interest relating to serious crime use property or the interest is the subject of an application for a substituted serious crime use property declaration, and (e) makes it clear that an interest in property does not cease to be serious crime derived property or illegally acquired property for the purposes of the Act if it is sold or disposed of pursuant Page 2 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Explanatory note to an order of the Supreme Court that does not expressly provide for it to cease to be serious crime derived property or illegally acquired property on its sale or disposition. Schedule 4 Amendment of Criminal Procedure Act 1986 No 209 Schedule 4 enables the following indictable offences to be dealt with summarily in certain cases: (a) an offence under section 193C of the Crimes Act 1900 (as substituted by the proposed Act), (b) an offence under section 87ZA of the Law Enforcement (Powers and Responsibilities) Act 2002 (as inserted by the proposed Act). Schedule 5 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103 Schedule 5 enables a senior police officer to make public safety orders to prohibit a person from being present at a public event or at premises or another area if the person's presence poses a serious risk to public safety or security. In particular, the provisions to be inserted: (a) specify the circumstances in which such orders may, or may not, be made, and (b) place limits on the content and duration of public safety orders, and (c) provide for service and notification requirements with respect to public safety orders, and (d) enable a police officer to search and enter premises, and stop and search vehicles, if the officer suspects on reasonable grounds that a person to whom a public safety order applies is within the premises to which the order applies, and (e) enable a person to whom a public safety order applies to appeal on the merits to the Supreme Court against the order (or a variation of the order) if the order is (or is to be) in force for a period exceeding 72 hours, and (f) make it an offence punishable by a maximum penalty of imprisonment for 5 years for a person to whom a public safety order applies not to comply with the order. Page 3 First print New South Wales Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 Contents Page 1 Name of Act 2 2 Commencement 2 Schedule 1 Amendment of Confiscation of Proceeds of Crime Act 1989 No 90 3 Schedule 2 Amendment of Crimes Act 1900 No 40 6 Schedule 3 Amendment of Criminal Assets Recovery Act 1990 No 23 8 Schedule 4 Amendment of Criminal Procedure Act 1986 No 209 12 Schedule 5 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103 13 b2014-116.d21 New South Wales Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 No , 2016 A Bill for An Act to amend certain Acts to make further provision with respect to organised crime and public safety. Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Criminal Legislation Amendment (Organised Crime and Public 3 Safety) Act 2016. 4 2 Commencement 5 This Act commences on a day or days to be appointed by proclamation. 6 Page 2 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 1 Amendment of Confiscation of Proceeds of Crime Act 1989 No 90 Schedule 1 Amendment of Confiscation of Proceeds of Crime 1 Act 1989 No 90 2 [1] Section 3 Principal objects 3 Insert "or substitutable tainted property" after "offences" in section 3 (b). 4 [2] Section 4 Definitions 5 Omit paragraph (b) (iii) from the definition of appropriate court in section 4 (1). 6 Insert instead: 7 (iii) a substituted tainted property declaration against a person 8 convicted of a serious offence, or 9 (iiia) an application for such a forfeiture order, pecuniary penalty order 10 or substituted tainted property declaration, or 11 [3] Section 4 (1) 12 Insert in alphabetical order: 13 substitutable tainted property means any property or any interest in property 14 that is capable of being the subject of a substituted tainted property declaration 15 in relation to the serious offence concerned. 16 substituted tainted property declaration means a declaration under section 33. 17 [4] Section 13 Applications for confiscation orders 18 Insert "or substitutable tainted property" after "tainted property" wherever occurring in 19 section 13 (1) (a), (2) (a) and (6) (a). 20 [5] Part 2, Division 5 21 Insert after Division 4: 22 Division 5 Substituted tainted property declarations 23 33 Substituted tainted property declaration 24 (1) An appropriate officer may apply to an appropriate court for a substituted 25 tainted property declaration against a person. 26 (2) A substituted tainted property declaration is a declaration to the effect that 27 property or an interest in property (or a combination of these) of a person who 28 has been convicted of a serious offence is available for forfeiture instead of 29 tainted property used in, or in connection with, the commission of that offence. 30 (3) Any application for a substituted tainted property declaration may be made: 31 (a) in conjunction with an application for a restraining order or forfeiture 32 order, or 33 (b) at any other time. 34 (4) If an appropriate officer applies for a substituted tainted property declaration 35 in respect of a property or interest in property (or a combination of these) of a 36 person: 37 (a) the appropriate officer must give written notice of the application to the 38 person and to any other person the appropriate officer has reason to 39 believe may have an interest in the property or properties concerned, 40 and 41 Page 3 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 1 Amendment of Confiscation of Proceeds of Crime Act 1989 No 90 (b) the person, and any other person who claims an interest in the property 1 or properties concerned, may appear and adduce evidence at the hearing 2 of the application, and 3 (c) the court may, at any time before the final determination of the 4 application, direct the appropriate officer to give or publish notice of the 5 application to a specified person or class of persons, in the manner and 6 within the time that the court considers appropriate. 7 (5) The court must make a substituted tainted property declaration against a 8 person if the court is satisfied that: 9 (a) the person has been convicted of a serious offence, and 10 (b) particular property became tainted property because it was used in, or in 11 connection with, the commission of the serious offence, and 12 (c) the tainted property is not available for forfeiture because: 13 (i) the person does not own, and does not have effective control of, 14 the property, or 15 (ii) the property has been sold or otherwise disposed of or cannot be 16 found for any other reason. 17 (6) When making a substituted tainted property declaration against a person, the 18 court is to: 19 (a) assess the value of the tainted property and specify its value in the 20 declaration, and 21 (b) specify property or an interest in property (or combination of these) of 22 the person that the court considers to be available for forfeiture instead 23 of the tainted property. 24 (7) The value of the tainted property is to be assessed for the purposes of 25 subsection (6) (a) by reference to its value at the time of the commission of the 26 serious offence concerned. 27 (8) Property or an interest in property (or a combination of these) specified for the 28 purposes of subsection (6) (b): 29 (a) must not have a value (or a total combined value) that is greater than the 30 value of the tainted property, and 31 (b) if it is practicable to do so, must be in relation to property of the same 32 kind as the tainted property. 33 (9) If the court makes a substituted tainted property declaration, the property or 34 interest in property (or combination of properties or interests) specified in the 35 declaration as being available for forfeiture is to be treated as being the tainted 36 property for the purposes of this Act (including in connection with the making 37 of forfeiture orders) in relation to the serious offence concerned instead of the 38 tainted property that is not available for forfeiture. 39 [6] Section 35 Definitions 40 Insert after paragraph (a) of the definition of tainted property in section 35 (1): 41 (a1) is, by reason of a declaration or other order of a court of another State, 42 to be treated under the law of that State as being property to which an 43 interstate forfeiture order can apply in substitution for property of the 44 kind referred to in paragraph (a), or 45 [7] Section 42B Applications for freezing notices 46 Insert "or substitutable tainted property" after "tainted property" in section 42B (1) (b). 47 Page 4 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 1 Amendment of Confiscation of Proceeds of Crime Act 1989 No 90 [8] Section 42C Issue of freezing notices 1 Insert "or substitutable tainted property" after "tainted property" in section 42C (2) (d) (i). 2 [9] Section 42L Confirmation of freezing notices 3 Insert "or substitutable tainted property" after "tainted property" in section 42L (3) (a). 4 [10] Section 43 Restraining orders 5 Insert "or substitutable tainted property" after "tainted property" in section 43 (2) (a) (ii). 6 [11] Schedule 1 Savings, transitional and other provisions 7 Insert at the end of clause 2 (1): 8 any other Act that amends this Act 9 [12] Schedule 1, clause 2 (3) 10 Omit "in the Gazette". Insert instead "on the NSW legislation website". 11 [13] Schedule 1 12 Insert at the end of the Schedule with appropriate Part and clause numbering: 13 Part Provision consequent on enactment of Criminal 14 Legislation Amendment (Organised Crime and 15 Public Safety) Act 2016 16 Application of amendments 17 An amendment made by the Criminal Legislation Amendment (Organised 18 Crime and Public Safety) Act 2016 applies only in relation to a serious offence 19 or serious drug offence that is committed on or after the commencement of the 20 amendment. 21 Page 5 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 2 Amendment of Crimes Act 1900 No 40 Schedule 2 Amendment of Crimes Act 1900 No 40 1 [1] Section 193C 2 Omit the section. Insert instead: 3 193C Dealing with property suspected of being proceeds of crime 4 (1) A person is guilty of an offence if: 5 (a) the person deals with property, and 6 (b) there are reasonable grounds to suspect that the property is proceeds of 7 crime, and 8 (c) at the time of the dealing, the value of the property is $100,000 or more. 9 Maximum penalty: Imprisonment for 5 years. 10 (2) A person is guilty of an offence if: 11 (a) the person deals with property, and 12 (b) there are reasonable grounds to suspect that the property is proceeds of 13 crime, and 14 (c) at the time of the dealing, the value of the property is less than $100,000. 15 Maximum penalty: Imprisonment for 3 years. 16 (3) Without limiting subsection (1) (b) or (2) (b), there are reasonable grounds to 17 suspect that property is proceeds of crime in each of the following 18 circumstances: 19 (a) in the case of subsection (1) (a)--the dealing involves a number of 20 transactions that are structured or arranged to avoid the reporting 21 requirements of the Financial Transaction Reports Act 1988 of the 22 Commonwealth that would otherwise apply to the transactions, 23 (b) the dealing involves a number of transactions that are structured or 24 arranged to avoid the reporting requirements of the Anti-Money 25 Laundering and Counter-Terrorism Financing Act 2006 of the 26 Commonwealth that would otherwise apply to the transactions, 27 (c) the dealing involves using one or more accounts held with authorised 28 deposit-taking institutions in false names, 29 (d) the dealing amounts to an offence against section 139, 140 or 141 of the 30 Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of 31 the Commonwealth, 32 (e) the value of the property involved in the dealing is, in the opinion of the 33 trier of fact, grossly out of proportion to the defendant's income and 34 expenditure over a reasonable period within which the dealing occurs, 35 (f) the dealing involves a significant cash transaction (within the meaning 36 of the Financial Transaction Reports Act 1988 of the Commonwealth) 37 and the defendant: 38 (i) has contravened the defendant's obligations under that Act 39 relating to reporting the transaction, or 40 (ii) has given false or misleading information in purported 41 compliance with those obligations, 42 Page 6 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 2 Amendment of Crimes Act 1900 No 40 (g) the dealing involves a threshold transaction (within the meaning of the 1 Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of 2 the Commonwealth) and the defendant: 3 (i) has contravened the defendant's obligations under that Act 4 relating to reporting the transaction, or 5 (ii) has given false or misleading information in purported 6 compliance with those obligations, 7 (h) the defendant: 8 (i) has stated that the dealing was engaged in on behalf of or at the 9 request of another person, and 10 (ii) has not provided information enabling the other person to be 11 identified and located. 12 (4) It is a defence to a prosecution for an offence under this section if the 13 defendant satisfies the court that the defendant had no reasonable grounds for 14 suspecting that the property was substantially derived or realised, directly or 15 indirectly, from an act or omission constituting an offence against a law in 16 force in the Commonwealth, a State or a Territory or another country. 17 [2] Section 193E Alternative verdicts 18 Insert after section 193E (2): 19 (2A) If on the trial of a person for an offence under section 193B, the jury is not 20 satisfied that the accused is guilty of the offence charged, but is satisfied that 21 the accused is guilty of an offence under section 193C (1) or (2), it may find 22 the accused not guilty of the offence charged but guilty of the other offence, 23 and the accused is liable to punishment accordingly. 24 [3] Section 193FA 25 Insert after section 193F: 26 193FA Combining several contraventions in a single charge 27 (1) A single charge of an offence against a provision of this Part may be about 2 or 28 more instances of the defendant engaging in conduct (at the same time or 29 different times) that constitutes an offence against a provision of this Part. 30 (2) If a single charge is about 2 or more such instances and the value of the 31 property dealt with is an element of the offence in question, that value is taken 32 to be the sum of the values of the property dealt with in each of those instances. 33 [4] Section 193G Transitional provision 34 Omit "This Part applies" and "commencement of this Part". 35 Insert instead "This Part (as amended by the Criminal Legislation Amendment (Organised 36 Crime and Public Safety) Act 2016) applies" and "commencement of the amendments 37 made to this Part by that Act", respectively. 38 Page 7 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 3 Amendment of Criminal Assets Recovery Act 1990 No 23 Schedule 3 Amendment of Criminal Assets Recovery Act 1 1990 No 23 2 [1] Section 4 Definitions 3 Insert in alphabetical order in section 4 (1): 4 available interest relating to serious crime use property means an interest in 5 property that is an available interest relating to serious crime use property as 6 provided by section 9B. 7 serious crime use property means property that is serious crime use property 8 as provided by section 9B. 9 substituted serious crime use property declaration means a declaration under 10 section 22AA. 11 [2] Section 9 Meaning of "serious crime derived property" and "illegally acquired 12 property" 13 Omit section 9 (5) (d). Insert instead: 14 (d) when it is the proceeds of the sale or other disposition of serious crime 15 derived property or illegally acquired property under the authority of 16 this Act, except if: 17 (i) the sale or other disposition is pursuant to an order of the 18 Supreme Court under this Act and the order does not expressly 19 provide for the property to cease to be serious crime derived 20 property or illegally acquired property on its sale or disposition, 21 or 22 (ii) the sale or other disposition is under section 10B (4) (b) or 14, or 23 [3] Section 9B 24 Insert after section 9A: 25 9B Meaning of "serious crime use property" and "available interest relating to 26 serious crime use property" 27 (1) In this Act, a reference to serious crime use property is a reference to property 28 that was used in, or in connection with, a serious crime related activity. 29 (2) In this Act, an interest in property is an available interest relating to serious 30 crime use property if: 31 (a) the interest is an interest of a person who has engaged in serious crime 32 related activity (the offender), and 33 (b) the offender's activity resulted in the property, or any other property, 34 becoming serious crime use property for the purposes of this Act, and 35 (c) the property is either the serious crime use property or, if that property 36 is not available for forfeiture as referred to in subsection (3), any other 37 property that is the subject of a substituted serious crime use property 38 declaration. 39 (3) Serious crime use property is not available for forfeiture if: 40 (a) the offender does not own, and does not have effective control of, the 41 property, or 42 (b) the property has been sold or otherwise disposed of or cannot be found 43 for any other reason. 44 Page 8 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 3 Amendment of Criminal Assets Recovery Act 1990 No 23 [4] Section 16A Restrictions on payment of legal expenses from restrained property 1 Insert after section 16A (1) (b): 2 (b1) no provision is to be made in relation to any particular interest in 3 property if the Supreme Court is satisfied that the interest is an available 4 interest relating to serious crime use property or the interest is the 5 subject of an application for a substituted serious crime use property 6 declaration, 7 [5] Section 22 Making of assets forfeiture order 8 Insert after section 22 (1A) (c): 9 (d) an interest in property suspected by an authorised officer, at the time of 10 the application, of being: 11 (i) an available interest relating to serious crime use property, or 12 (ii) an interest that is capable of being the subject of a substituted 13 serious crime use property declaration in relation to the serious 14 crime related activity concerned. 15 [6] Section 22 (2B) 16 Insert after section 22 (2A): 17 (2B) The Supreme Court must make an assets forfeiture order in respect of an 18 interest in property if the Court finds it more probable than not that the interest 19 is an available interest relating to serious crime use property. 20 [7] Section 22 (6A) 21 Insert "or (2B)" after "subsection (2A)". 22 [8] Section 22AA 23 Insert after section 22A: 24 22AA Substituted serious crime use property declaration 25 (1) The Commission may apply to the Supreme Court for a substituted serious 26 crime use property declaration against a person. 27 (2) A substituted serious crime use property declaration is a declaration to the 28 effect that an interest in property (or a combination of interests in properties) 29 of a person who has engaged in serious crime related activity is available for 30 forfeiture instead of serious crime use property that was used in, or in 31 connection with, that activity. 32 (3) Any such application may be made: 33 (a) in conjunction with an application for a restraining order or assets 34 forfeiture order, or 35 (b) in proceedings under section 24, 25 or 26, or 36 (c) at any other time. 37 (4) If the Commission applies for a substituted serious crime use property 38 declaration in respect of an interest in property (or a combination of interests 39 in properties) of a person: 40 (a) the Commission must give written notice of the application to the 41 person and to any other person the Commission has reason to believe 42 may have an interest in the property or properties concerned, and 43 Page 9 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 3 Amendment of Criminal Assets Recovery Act 1990 No 23 (b) the person, and any other person who claims an interest in the property 1 or properties concerned, may appear and adduce evidence at the hearing 2 of the application, and 3 (c) the Supreme Court may, at any time before the final determination of 4 the application, direct the Commission to give or publish notice of the 5 application to a specified person or class of persons, in the manner and 6 within the time that the Court considers appropriate. 7 (5) The Supreme Court must make a substituted serious crime use property 8 declaration against a person if the Court finds that it is more probable than not 9 that: 10 (a) the person has engaged in serious crime related activity, and 11 (b) the activity has resulted in particular property becoming serious crime 12 use property for the purposes of this Act, and 13 (c) the serious crime use property is not available for forfeiture as referred 14 to in section 9B (3). 15 (6) When making a substituted serious crime use property declaration against a 16 person, the Supreme Court is to: 17 (a) assess the value of the serious crime use property and specify its value 18 in the declaration, and 19 (b) specify an interest in property (or a combination of interests in 20 properties) of the person that the Court considers to be available for 21 forfeiture instead of the serious crime use property. 22 (7) The value of the serious crime use property is to be assessed for the purposes 23 of subsection (6) (a) by reference to its value at the time that the serious crime 24 related activity concerned was engaged in. 25 (8) An interest in property (or combination of interests in properties) specified for 26 the purposes of subsection (6) (b): 27 (a) must not have a value (or a total combined value) that is greater than the 28 value of the serious crime use property, and 29 (b) if it is practicable to do so, must be in relation to property of the same 30 kind as the serious crime use property. 31 (9) If the Supreme Court makes a substituted serious crime use property 32 declaration, the interest in property (or combination of interests in properties) 33 specified in the declaration as being available for forfeiture instead of serious 34 crime use property is to be treated as an available interest relating to serious 35 crime use property for the purposes of this Act (including in connection with 36 the making of assets forfeiture orders) in relation to the serious crime related 37 activity concerned. 38 [9] Section 25 Exclusion of property from restraining order and assets forfeiture order 39 Insert after section 25 (3): 40 (3A) Despite subsections (1)-(3), the Supreme Court is not to make an exclusion 41 order if the Supreme Court finds that it is more probable than not that the 42 property to which the application for the assets forfeiture order, or the assets 43 forfeiture order, relates is serious crime use property or an interest in property 44 that is capable of being the subject of a substituted serious crime use property 45 declaration. 46 Page 10 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 3 Amendment of Criminal Assets Recovery Act 1990 No 23 [10] Section 26 Exclusion of the value of innocent interests from assets forfeiture order 1 Insert after section 26 (3): 2 (3A) Despite subsections (1)-(3), the Supreme Court is not to make a declaration or 3 order under this section if the Supreme Court finds that it is more probable than 4 not that the property to which the assets forfeiture order relates is serious crime 5 use property or an interest in property that is capable of being the subject of a 6 substituted serious crime use property declaration. 7 [11] Section 32 Establishment and use of Proceeds Account 8 Omit "proceeds assessment orders or unexplained wealth orders" from section 32 (3) (c). 9 Insert instead "serious crime use property assets forfeiture orders, proceeds assessment 10 orders and unexplained wealth orders". 11 [12] Section 32 (4) 12 Insert after section 32 (3): 13 (4) In this section: 14 serious crime use property assets forfeiture orders means assets forfeiture 15 orders made on the ground of there being an available interest relating to 16 serious crime use property. 17 [13] Schedule 1 Savings and transitional provisions 18 Insert at the end of the Schedule with appropriate Part and clause numbering: 19 Part Criminal Legislation Amendment (Organised Crime 20 and Public Safety) Act 2016 21 Application of amendments 22 An amendment made by the Criminal Legislation Amendment (Organised 23 Crime and Public Safety) Act 2016 applies only in relation to serious crime 24 related activity that occurs on or after the commencement of the amendment. 25 Page 11 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 4 Amendment of Criminal Procedure Act 1986 No 209 Schedule 4 Amendment of Criminal Procedure Act 1986 1 No 209 2 [1] Schedule 1 Indictable offences triable summarily 3 Insert ", 193C" after "192" in clause 3 (c) of Table 1. 4 [2] Schedule 1, Table 1 5 Insert after clause 21A: 6 21B Law Enforcement (Powers and Responsibilities) Act 2002 7 An offence under section 87ZA of the Law Enforcement (Powers and 8 Responsibilities) Act 2002. 9 [3] Schedule 1, Table 2 10 Insert "193C," after "192," in clause 3 (c). 11 Page 12 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 5 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103 Schedule 5 Amendment of Law Enforcement (Powers and 1 Responsibilities) Act 2002 No 103 2 [1] Part 6B 3 Insert after Part 6A: 4 Part 6B Public safety orders 5 Division 1 Interpretation 6 87P Definitions 7 In this Part: 8 long duration public safety order--see section 87V. 9 public event means a trade, cultural, social or sporting event that is open to the 10 public (including when entry into the event requires the payment of a fee or 11 other charge). 12 public safety order--see section 87Q. 13 senior police officer means a police officer of the rank of Inspector or above 14 (including the Commissioner). 15 Note. By virtue of the Interpretation Act 1987 (section 48 (2)) a person acting in an 16 office referred to above may exercise the functions of a senior police officer under this 17 Part. 18 87Q What is a public safety order 19 A public safety order is an order made by a senior police officer that prohibits 20 a specified person (or persons belonging to a specified class of persons) from: 21 (a) attending a specified public event (including entering, or being present 22 at, premises being used in connection with the public event), or 23 (b) entering, or being present at, specified premises or other specified area 24 at any time during a specified period. 25 Division 2 Making, variation and revocation of public safety 26 orders 27 87R Power of senior police officer to make public safety order 28 (1) A senior police officer may make a public safety order only if satisfied that: 29 (a) the presence of the person (or class of persons) concerned at the public 30 event or premises or other area concerned poses a serious risk to public 31 safety or security, and 32 (b) the making of the order is reasonably necessary in the circumstances. 33 Note. Section 87S includes provisions about the content of a public safety order, 34 including in relation to its duration. 35 Section 87T contains provisions concerning the service and notification of variations to 36 public safety orders. In particular, section 87T (4) provides that a statement of the 37 reasons for making or varying a public safety order must not contain information that 38 would result in the disclosure of a criminal intelligence report or other criminal 39 information held in relation to a person. 40 (2) In determining whether the making of a public safety order is reasonably 41 necessary in the circumstances, the senior police officer must take into account 42 Page 13 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 5 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103 the following matters and may take into account any other matter that the 1 officer considers relevant: 2 (a) whether the person or persons to whom the order will apply previously 3 behaved in a way that posed a serious risk to public safety or security or 4 have a history of engaging in serious crime related activity within the 5 meaning of the Criminal Assets Recovery Act 1990, 6 (b) whether the person or persons to whom the order will apply: 7 (i) are, or have been, members of a declared organisation (within the 8 meaning of the Crimes (Criminal Organisations Control) Act 9 2012), or 10 (ii) are, or have been, subject to control orders under that Act, or 11 (iii) associate, or have associated, with members of a declared 12 organisation or persons subject to control orders within the 13 meaning of that Act, 14 (c) if advocacy, protest, dissent or industrial action is likely to be the 15 primary purpose for the person or persons to whom the order will apply 16 being present at the relevant public event or premises or other area--the 17 public interest in maintaining freedom to participate in such activities, 18 (d) whether the person or persons to whom the order will apply will be 19 prevented from being present at any of the following: 20 (i) a place of work at which the person or persons are regularly 21 employed, 22 (ii) an educational institution attended by the person or persons, 23 (iii) a place of worship attended by the person or persons, 24 (iv) a place at which the person or persons receive a health service or 25 welfare service, 26 (v) a place at which the person or persons are provided with legal 27 services by any Australian legal practitioners or by any 28 organisations employing or otherwise using one or more 29 Australian legal practitioners to provide such services, 30 (e) whether the degree of risk involved justifies the imposition of the 31 prohibitions to be specified in the order (having regard, in particular, to 32 any legitimate reason the person or persons to whom the order will 33 apply may have for being present at the relevant event or premises or 34 other area), 35 (f) the extent to which the making of the order will mitigate any risk to 36 public safety or security, 37 (g) the extent to which the order is necessary having regard to other 38 measures reasonably available to mitigate the risk. 39 (3) However, a senior police officer must not make a public safety order that 40 would prohibit a person or class of persons from being present at any public 41 event or premises or other area if: 42 (a) the officer believes that non-violent advocacy, protest or dissent is 43 likely to be the primary purpose for their presence at the public event or 44 premises or other area, or 45 (b) the officer believes that industrial action is likely to be the primary 46 purpose for their presence at the public event or premises or other area, 47 or 48 (c) the order would prevent them from entering their principal places of 49 residence. 50 Page 14 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 5 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103 (4) A senior police officer must not make a public safety order if the period during 1 which the order will be in force would, when added to the period of any 2 previous orders made in connection with the same person or persons and 3 public event or premises or other area, result in the combined period exceeding 4 the maximum period of duration for the kind of order concerned referred to in 5 section 87S (1). 6 (5) For the purposes of this section, the presence of a person or persons at a public 7 event or premises or other area poses a serious risk to public safety or security 8 if there is a serious risk that the presence of the person or persons might result 9 in: 10 (a) the death of, or serious physical harm to, a person, or 11 (b) serious damage to property. 12 (6) In this section: 13 damage, in relation to property, includes the following: 14 (a) destruction of the property, 15 (b) an alteration to the property that depreciates its value, 16 (c) rendering the property useless or inoperative, 17 (d) in relation to an animal--injuring, wounding or killing the animal. 18 87S Content and duration of public safety order 19 (1) A public safety order must specify: 20 (a) the public event or premises or other area to which it applies, and 21 (b) the person (or class of persons) to which it applies, and 22 (c) that a contravention of the order may constitute an offence that carries 23 a maximum penalty of imprisonment for 5 years, and 24 (d) in the case of an order that applies to premises or another area other than 25 in connection with a public event--the period during which the order 26 will be in force (being a period not exceeding 72 hours), and 27 (e) in the case of an order that applies to a public event: 28 (i) the location or locations in which the event is being held for the 29 purposes of the order, and 30 (ii) if the public event is held over consecutive days--when the event 31 is taken to start and finish for the purposes of the order, and 32 (iii) if the public event is held over non-consecutive days--when the 33 event is taken to start and finish for the purposes of the order for 34 each of the days it is held (being a combined period that does not 35 exceed 72 hours in total). 36 Note. Division 3 enables a person to whom a public safety order applies to appeal to 37 the Supreme Court against the order (or a variation of the order) if the order is (or is to 38 be) in force for a period exceeding 72 hours. 39 (2) Subject to subsection (3), a public safety order remains in force only for the 40 period or periods specified in the order in accordance with this section. 41 (3) A public safety order that applies to a public event that is cancelled ceases to 42 be in force on that cancellation. 43 Page 15 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 5 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103 87T Service and notification of public safety order or variation of order 1 (1) Ordinary service and notification requirements 2 A senior police officer who makes or varies a public safety order must ensure 3 that both of the following are served by means of personal service on each 4 person to whom the order applies: 5 (a) a copy of the order as so made or varied, 6 (b) a notification in accordance with this section. 7 (2) If the senior police officer considers that a person to whom the order applies 8 is a person under the age of 18 years or has impaired intellectual functioning, 9 the officer must ensure that the order and notification are also served by means 10 of personal service on a parent or guardian (if any) of the person if it is 11 reasonably practicable to do so. However, a failure to do so does not prevent 12 the order or variation from becoming binding when it is served on the person. 13 (3) The notification accompanying the order: 14 (a) must be in writing, and 15 (b) must specify the date on which the order or variation was made, and 16 (c) must: 17 (i) subject to subsection (4), include a statement of the reasons for 18 making or varying the public safety order, and 19 (ii) include an explanation of the right of appeal to the Supreme 20 Court against the decision under Division 3. 21 (4) Despite any other Act or law, a statement of the reasons for making or varying 22 a public safety order must not contain information that would result in the 23 disclosure of a criminal intelligence report or other criminal information held 24 in relation to a person. 25 (5) A public safety order (as made or varied) is not binding on a person to whom 26 the order applies unless the order and notification have been served on that 27 person in accordance with subsection (1). 28 (6) Once a public safety order and notification have been served on a person in 29 accordance with subsection (1), the order is binding on the person, regardless 30 of whether any other person or persons to whom the order applies have been 31 so served. 32 (7) Urgent orders 33 Despite subsections (1)-(6), if a police officer is satisfied that a public safety 34 order (as made or varied) should become binding on a person as a matter of 35 urgency: 36 (a) the officer may communicate the contents of the order, or the order as 37 so varied, verbally to any person to whom the order applies and advise 38 such person of the place at which the person may obtain a written copy 39 of the order and a notification in accordance with subsection (8), and 40 (b) on the information described in paragraph (a) being communicated to 41 the person, the order, or the order as so varied, is binding on the person. 42 (8) The police officer who verbally communicates the order to the person must 43 ensure that the following are both available for collection by the person at a 44 police station that is reasonably accessible by the person within 12 hours after 45 the communication: 46 (a) a copy of the order, 47 Page 16 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 5 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103 (b) the notification that would have been required to accompany the order 1 if the order had been served on the person in accordance with 2 subsection (1). 3 87U Variation and revocation of public safety order 4 (1) Subject to subsection (3), a public safety order may be varied or revoked by a 5 senior police officer before the order ceases to be in force (whether or not he 6 or she is the same officer who made the original order). 7 (2) Without limiting subsection (1), the Commissioner must revoke a public 8 safety order if the Commissioner becomes aware that the order was 9 erroneously made or that the grounds for its making no longer exist. 10 (3) A public safety order that is made or varied by the Commissioner may be 11 subsequently varied or revoked only by the Commissioner. 12 (4) A variation of a public safety order must comply with the requirements of this 13 Part concerning the appropriate content, duration and grounds for making a 14 public safety order. 15 Note. See also section 87T concerning the service and notification of variations to 16 public safety orders. 17 (5) The revocation of a public safety order takes effect when the person to whom 18 the order applies is served by means of personal service with a written notice 19 of the revocation. 20 (6) If a public safety order applies to more than one person and a variation or 21 revocation is served on those persons at different times, the order continues in 22 force in relation to a person to whom the order applies until: 23 (a) in the case of a variation--the varied order is served on, or otherwise 24 brought to the notice of, the person in accordance with section 87T, or 25 (b) in the case of a revocation--the written notice of revocation is served 26 on the person. 27 Division 3 Appeals against long duration public safety orders 28 87V Application of Division 29 This Division applies only to a public safety order that is (or is to be) in force 30 for a period exceeding 72 hours (a long duration public safety order). 31 87W Appeal to Supreme Court against long duration public safety orders 32 (1) A person to whom a long duration public safety order applies may appeal to 33 the Supreme Court against: 34 (a) the decision to make the order, or 35 (b) a decision to vary the order (unless the decision operates to reduce the 36 duration of the order to 72 hours or less). 37 (2) An appeal under this Division must be made before the long duration public 38 safety order ceases to be in force. 39 (3) The making of an appeal under this Division does not affect the operation of 40 the long duration public safety order under appeal. 41 87X Criminal intelligence reports or other criminal information 42 (1) The Commissioner may make an application to the Supreme Court in an 43 appeal under this Division for the Court not to disclose the existence or content 44 Page 17 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 5 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103 of any criminal intelligence report or other criminal information used in 1 connection with the making or variation of the long duration public safety 2 order under appeal. 3 (2) The Supreme Court may grant the application if the Court: 4 (a) is satisfied that the information to which the application relates is a 5 criminal intelligence report or other criminal information, and 6 (b) considers that it is in the interests of justice to grant the application. 7 (3) In determining whether it is in the interests of justice to grant the application, 8 the Supreme Court is to take into account each of the following matters 9 concerning the effect of disclosure of the criminal intelligence report or other 10 criminal information to which the application relates: 11 (a) whether disclosure will have a prejudicial effect on the prevention, 12 investigation or prosecution of an offence, 13 (b) whether disclosure will result in the existence or identity of a 14 confidential source of information relevant for law enforcement 15 purposes being revealed or made discoverable, 16 (c) whether disclosure will result in confidential investigative methods or 17 techniques used by police or security agencies being revealed or made 18 discoverable, 19 (d) whether disclosure will endanger a person's life or physical safety. 20 (4) If the Supreme Court grants the application, the Court: 21 (a) is to ensure that the Court does not, in the reasons for its decision on the 22 appeal or otherwise, disclose the existence or content of the criminal 23 intelligence report or other criminal information to which the 24 application relates, and 25 (b) in order to prevent the disclosure of the criminal intelligence report or 26 other criminal information, is to receive evidence and hear argument in 27 the appeal in the absence of the public, the appellant, the appellant's 28 representative and any other party, unless the Commissioner approves 29 otherwise. 30 Note. Section 87T (4) provides that a statement of the reasons of a senior police officer 31 for making or varying a public safety order must not contain information that would 32 result in the disclosure of a criminal intelligence report or other criminal information held 33 in relation to a person. 34 (5) If the Supreme Court refuses the application, the Commissioner is entitled to 35 withdraw the tender of the information to which the application relates as 36 evidence in the appeal. 37 (6) Information that is withdrawn by the Commissioner must not be: 38 (a) disclosed to any person, or 39 (b) taken into consideration by the Supreme Court in determining an appeal 40 under this Division. 41 87Y Determination of appeal on the merits 42 (1) On an appeal under this Division, the Supreme Court is to decide what the 43 correct and preferable decision is having regard to the material then before it, 44 including the following: 45 (a) any relevant factual material, 46 (b) any applicable written or unwritten law. 47 Page 18 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 5 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103 (2) In determining the appeal, the Supreme Court may decide: 1 (a) to affirm the decision under appeal, or 2 (b) to vary the decision under appeal, or 3 (c) to set aside the decision under appeal, or 4 (d) to set aside the decision under appeal and make a decision in 5 substitution for the decision that is set aside. 6 87Z Rules of court 7 Rules of court may be made under the Civil Procedure Act 2005 and the 8 Supreme Court Act 1970 for or with respect to the practice and procedure to 9 be followed in respect of an appeal under this Division and any matters 10 incidental to, or relating to, such practice and procedure. 11 Division 4 Miscellaneous 12 87ZA Contravention of public safety order 13 A person to whom a public safety order applies must not contravene the order. 14 Maximum penalty: Imprisonment for 5 years. 15 87ZB Power to search premises and other areas and vehicles in connection with 16 public safety order 17 (1) A police officer may, without a warrant, enter and search any of the following 18 premises or other areas if the police officer suspects on reasonable grounds 19 that a person to whom a public safety order applies is within the premises or 20 area: 21 (a) premises or other areas specified in the public safety order, 22 (b) premises or other areas in which a public event specified in the public 23 safety order is being held. 24 (2) A police officer may, without a warrant, stop and search a vehicle, and 25 anything in or on a vehicle, if the police officer suspects on reasonable grounds 26 that: 27 (a) a person within the vehicle is a person to whom a public safety order 28 applies, and 29 (b) the vehicle is approaching, is in, or has recently left, any public event or 30 premises or other area specified in the public safety order. 31 (3) A police officer may detain a vehicle for so long as is reasonably necessary to 32 conduct a search under this section. 33 87ZC Regulations 34 (1) The regulations may make provision for or with respect to the following: 35 (a) forms for public safety orders or notices under this Part, 36 (b) the means for effecting personal service of public safety orders and 37 other documents for the purposes of this Part, 38 (c) safeguards for vulnerable persons in connection with the making, 39 service, variation or revocation of public safety orders that apply to 40 them. 41 Page 19 Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 [NSW] Schedule 5 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103 (2) In this section: 1 vulnerable person means a person who falls into any one or more of the 2 following categories: 3 (a) persons who are under the age of 18 years, 4 (b) persons who have impaired intellectual functioning, 5 (c) persons who have impaired physical functioning, 6 (d) persons who are Aboriginal persons or Torres Strait Islanders, 7 (e) persons who are of non-English speaking background. 8 [2] Section 234 Proceedings for offences 9 Insert "(except section 87ZA)" after "this Act". 10 Page 20
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