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CRIMINAL LEGISLATION AMENDMENT (ORGANISED CRIME AND PUBLIC SAFETY) BILL 2016





                                     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



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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


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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.




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                                                                            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




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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



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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



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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




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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




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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




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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




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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




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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




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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




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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




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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




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                   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



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             (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




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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




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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




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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




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             (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




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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




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