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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Crimes (Criminal Organisations
Control) Amendment Bill 2012
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Crimes (Criminal Organisations Control)
Act 2012 No 9 3
b2012-133-19.d20
New South Wales
Crimes (Criminal Organisations
Control) Amendment Bill 2012
No , 2012
A Bill for
An Act to amend the Crimes (Criminal Organisations Control) Act 2012 to make
further provision with respect to the control of criminal organisations and their
members.
Clause 1 Crimes (Criminal Organisations Control) Amendment Bill 2012
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Crimes (Criminal Organisations Control) Amendment 3
Act 2012. 4
2 Commencement 5
This Act commences on the date of assent to this Act. 6
Page 2
Crimes (Criminal Organisations Control) Amendment Bill 2012
Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9 Schedule 1
Schedule 1 Amendment of Crimes (Criminal 1
Organisations Control) Act 2012 No 9 2
[1] Section 3 Definitions 3
Insert in alphabetical order in section 3 (1): 4
interstate control order--see section 27A. 5
interstate declaration--see section 27A. 6
registrar--see section 27A. 7
[2] Section 3 (1), definition of "serious criminal activity" 8
Omit the definition. Insert instead: 9
serious criminal activity means any of the following: 10
(a) committing a serious criminal offence within the meaning 11
of section 6 of the Criminal Assets Recovery Act 1990, 12
(b) obtaining material benefits from conduct that constitutes 13
any such offence, 14
(whether or not any person has been charged or convicted of any 15
such offence). 16
[3] Section 3 (1), definition of "serious violence offence" 17
Omit the definition. 18
[4] Section 8 Submissions at the hearing 19
Insert "(personally or through a legal representative)" after "submissions" 20
wherever occurring in section 8 (1) and (2). 21
[5] Sections 8A and 8B 22
Insert after section 8: 23
8A Examination of submissions 24
(1) The eligible Judge may, so far as the eligible Judge thinks proper, 25
question any person (including a legal representative) who makes 26
a submission in relation to an application under this Part on any 27
matter that the eligible Judge thinks relevant, or allow a legal 28
representative of a person to do so. 29
(2) The eligible Judge may require a person present at the hearing to 30
produce a document or other thing that the eligible Judge 31
considers may be relevant. 32
(3) The eligible Judge may summon any other person whom the 33
eligible Judge considers may have relevant information in 34
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Crimes (Criminal Organisations Control) Amendment Bill 2012
Schedule 1 Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9
relation to an application under this Part to be present at the 1
hearing of the application to be questioned and to produce such 2
documents or other things (if any) as are referred to in the 3
summons. 4
(4) The eligible Judge may, at the hearing, take evidence on oath or 5
affirmation and for that purpose: 6
(a) the eligible Judge may require a person being questioned 7
at the hearing to either take an oath or make an affirmation 8
in a form approved by the eligible Judge, and 9
(b) the eligible Judge may administer an oath or affirmation to 10
the person. 11
(5) The eligible Judge has power to do all things necessary to be done 12
for or in connection with, or reasonably incidental to, the exercise 13
of the eligible Judge's functions with respect to the hearing of an 14
application, and any specific powers conferred on the eligible 15
Judge by this Act must not be taken to limit by implication the 16
generality of this subsection. 17
8B Contempt of eligible Judge 18
(1) The eligible Judge may report the following matters to the Court: 19
(a) if a person fails to be present at a hearing of an application 20
under this Part after having been served with a summons 21
under section 8A, 22
(b) if a person fails to produce any document or other thing in 23
the person's custody or control that the person is required 24
by such a summons to produce, 25
(c) if a person refuses to be sworn or to make an affirmation 26
or refuses or otherwise fails to answer any question that is 27
put to the person by the eligible Judge at the hearing of an 28
application under this Part, 29
(d) if a person wilfully threatens or insults the eligible Judge 30
or any other person present at such a hearing, 31
(e) if a person misbehaves himself or herself before the 32
eligible Judge, 33
(f) if a person interrupts the proceedings of the hearing, 34
(g) if a person obstructs or attempts to obstruct the eligible 35
Judge, 36
(h) if a person does any other thing that, if the eligible Judge 37
were a court of law having power to commit for contempt, 38
would be contempt of that court. 39
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Crimes (Criminal Organisations Control) Amendment Bill 2012
Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9 Schedule 1
(2) If the eligible Judge reports a matter to the Court under 1
subsection (1), the Court may deal with the matter as if it were a 2
contempt of the Court. However, a person is not liable to be 3
punished for contempt under this subsection if the person 4
establishes that there was a reasonable excuse for the act or 5
omission concerned. 6
[6] Section 9 Eligible Judge may make declaration 7
Insert "in New South Wales" after "organisation" in section 9 (1) (a). 8
[7] Section 9 (1) (b) 9
Omit the paragraph. Insert instead: 10
(b) the continued existence of the organisation represents a 11
risk to public safety and order in this State, 12
[8] Section 9 (2) (a) 13
Insert "in New South Wales" after "activity". 14
[9] Section 9 (2) (b) and (c) 15
Insert "in New South Wales" after "organisation" wherever occurring. 16
[10] Section 9 (4) (a) 17
Omit the paragraph. Insert instead: 18
(a) whether or not all the members in New South Wales 19
associate for that purpose or only some of the members 20
(provided that, if the eligible Judge is satisfied that only 21
some of the members in New South Wales associate for 22
that purpose, the eligible Judge must be satisfied that those 23
members constitute a significant group within the 24
organisation in New South Wales, either in terms of their 25
numbers or in terms of their capacity to influence the 26
organisation or its members in New South Wales), and 27
[11] Section 9 (4) (b) and (c) 28
Insert "in New South Wales" after "members" wherever occurring. 29
[12] Section 11 Duration of declaration 30
Omit "3 years" from section 11 (2). Insert instead "5 years". 31
[13] Section 12 Revocation of declaration 32
Insert "in New South Wales" after "organisation" in section 12 (4) (a). 33
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Schedule 1 Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9
[14] Section 12 (4) (b) 1
Insert "continued existence of the" before "organisation". 2
[15] Section 13 Conduct of hearings of applications for declarations under 3
this Part 4
Insert after section 13 (2): 5
(3) The eligible Judge is to prepare and sign a written statement of 6
reasons for the decision. 7
(4) The eligible Judge must, as soon as practicable, provide a copy of 8
the statement to the Commissioner and the registrar. 9
(5) The Commissioner is to ensure that the written statement is 10
published in the Gazette. 11
(6) Nothing in this section authorises or requires the disclosure of 12
information by an eligible Judge where an obligation to maintain 13
the confidentiality of the information otherwise exists (whether 14
under section 28 or 29 or some other Act or law). 15
[16] Section 20A 16
Insert after section 20: 17
20A Proof of certain matters 18
(1) A copy of a written statement of reasons for making a declaration 19
under Part 2 in respect of an organisation identified in the 20
declaration that was signed in accordance with section 13 (3) by 21
the eligible Judge who made the declaration is admissible in 22
proceedings under this Division with respect to an application for 23
a control order and is evidence of the following facts: 24
(a) that the organisation is a declared organisation, 25
(b) that a person identified as a member of that organisation is 26
a member of that organisation, 27
(c) that: 28
(i) members of that organisation in New South Wales 29
associate for the purpose of organising, planning, 30
facilitating, supporting or engaging in serious 31
criminal activity, and 32
(ii) the continued existence of that organisation 33
represents a risk to public safety and order in this 34
State. 35
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Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9 Schedule 1
(2) Except for the purpose of proceedings under this Division, a 1
finding or opinion in the written statement that specified persons: 2
(a) are members of the declared organisation identified in the 3
declaration, and 4
(b) associate for the purpose of organising, planning, 5
facilitating, supporting or engaging in serious criminal 6
activity, 7
is not in itself a finding or opinion that the persons are guilty of 8
or have committed, or are about to commit, criminal offences. 9
[17] Part 3A 10
Insert after Part 3: 11
Part 3A Reciprocal recognition and enforcement of 12
declarations and orders 13
Division 1 Preliminary 14
27A Definitions 15
In this Act: 16
interstate control order means an order made under a provision 17
of a law of another State or Territory that is prescribed by the 18
regulations for the purposes of this definition. 19
interstate declaration means a declaration made under a 20
provision of a law of another State or Territory that is prescribed 21
by the regulations for the purposes of this definition. 22
registrar means a person who is: 23
(a) appointed in accordance with section 120 of the Supreme 24
Court Act 1970, and 25
(b) nominated by the Principal Registrar of the Court for the 26
purposes of this Act. 27
respondent means the organisation the subject of an interstate 28
declaration or the person the subject of an interstate control order 29
(as the case may be). 30
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Schedule 1 Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9
Division 2 Registration of interstate declaration in New 1
South Wales 2
27B Application for registration of interstate declaration in New South 3
Wales 4
(1) The Commissioner may apply to the registrar for the registration 5
of an interstate declaration. 6
(2) An application for registration must: 7
(a) be made in writing, and 8
(b) be accompanied by an affidavit from the Commissioner 9
including or accompanied by the following: 10
(i) a copy of the interstate declaration, 11
(ii) enough information to satisfy the registrar that the 12
declaration is an interstate declaration that is in 13
force. 14
(3) An application for registration of an interstate declaration does 15
not need to be served on the respondent. 16
27C When interstate declaration cannot be registered 17
An application for registration of an interstate declaration cannot 18
be made, and an interstate declaration cannot be registered, if any 19
of the following apply to the declaration: 20
(a) the law of the jurisdiction in which the declaration was 21
made specifies a period within which the respondent may 22
appeal against the declaration, and that period is still 23
running, 24
(b) the determination of an application by the respondent for 25
leave to appeal against the declaration (whether made 26
before or after any appeal period has expired) is pending, 27
(c) the determination of an appeal by the respondent against 28
the declaration is pending. 29
27D Registration of interstate declaration 30
The registrar must register an interstate declaration that is the 31
subject of an application under this Division if the registrar is 32
satisfied of the following: 33
(a) that the declaration is in force, 34
(b) if the law of the jurisdiction in which the declaration was 35
made requires notice of the declaration to be published-- 36
that the requirement has been complied with, 37
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Crimes (Criminal Organisations Control) Amendment Bill 2012
Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9 Schedule 1
(c) if the law of the jurisdiction in which the declaration was 1
made requires notice of the declaration to be served on any 2
organisation, person or group of persons--that the 3
requirement has been complied with or is taken to have 4
been complied with, 5
(d) that section 27C does not prevent registration of the 6
declaration. 7
27E Period of registration 8
(1) On registering an interstate declaration, the registrar is to specify 9
the date on which the registration expires. 10
(2) The date specified by the registrar is to be the date on which the 11
interstate declaration would cease to be in force in the jurisdiction 12
in which it was made if it were not sooner revoked. 13
(3) The registration of the interstate declaration expires on the 14
specified date. 15
(4) Subsections (1)-(3) do not apply if, under the law of the 16
jurisdiction in which the interstate declaration was made, the 17
interstate declaration remains in force for an indefinite period, in 18
which case: 19
(a) on registering the declaration--the registrar is to specify 20
that the registration is in force for an indefinite period, and 21
(b) the registration of the interstate declaration does not 22
expire. 23
27F Notice of registration 24
(1) Not later than 2 working days after registering an interstate 25
declaration, the registrar must give the Commissioner a 26
certificate of the registration with a copy of the registered 27
interstate declaration attached. 28
(2) As soon as practicable after receiving a copy of the registered 29
interstate declaration, the Commissioner must: 30
(a) publish notice of the registration of the interstate 31
declaration in the Gazette and in at least one newspaper 32
circulating throughout the State, and 33
(b) give notice of the registration to the commissioner (by 34
whatever name called) of the police force or police service 35
of the State or Territory in which the interstate declaration 36
was made and, if the interstate declaration was made by a 37
court, a registrar of that court. 38
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Schedule 1 Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9
27G Commencement and duration of registered interstate declaration 1
A registered interstate declaration: 2
(a) comes into force in New South Wales on the day after the 3
day on which notice of registration of the declaration is 4
published in the Gazette under section 27F, and 5
(b) remains in force in New South Wales until one of the 6
following occurs: 7
(i) the registration of the declaration expires in 8
accordance with section 27E, 9
(ii) the registration of the declaration is cancelled under 10
this Part. 11
27H Effect of registration of interstate declaration 12
(1) A registered interstate declaration that has come into force under 13
section 27G operates in New South Wales as if it were a 14
declaration made under section 9. 15
(2) A change in the name or the membership of an organisation that 16
is the subject of a registered interstate declaration does not affect 17
its registration or effect in this State. 18
27I Cancellation of registration of interstate declaration on revocation 19
in jurisdiction where originally made 20
(1) This section applies to a registered interstate declaration if: 21
(a) the declaration is revoked in the jurisdiction in which it 22
was made, and 23
(b) the registrar receives notice of the revocation. 24
(2) On receiving notice of the revocation of the registered interstate 25
declaration, the registrar must: 26
(a) cancel the registration of the declaration without delay, 27
and the cancellation takes effect immediately, and 28
(b) give the Commissioner written notice of the cancellation. 29
27J Cancellation of registration of interstate declaration at request of 30
Commissioner 31
(1) The Commissioner may, at any time while an interstate 32
declaration is registered under this Part, apply to the registrar to 33
cancel the registration of the declaration. 34
(2) On receiving an application under this section, the registrar must: 35
(a) cancel the registration of the declaration without delay, 36
and the cancellation takes effect immediately, and 37
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Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9 Schedule 1
(b) give the Commissioner written notice of the cancellation. 1
27K Cancellation of registration of interstate declaration by Court 2
(1) The Court may, on application by the respondent, cancel the 3
registration of an interstate declaration if satisfied that the 4
declaration should not have been registered in accordance with 5
this Part. 6
(2) The Commissioner is a party to the application. 7
(3) If the registration of an interstate declaration is cancelled under 8
this section, any control order made under this Act relating to a 9
member of the organisation that is the subject of the interstate 10
declaration on the basis of the declaration ceases to have effect. 11
(4) Nothing in this section authorises the Court to reconsider the 12
merits of the interstate declaration. 13
27L Notice of cancellation or expiry of registration of interstate 14
declaration 15
As soon as practicable after the registration of an interstate 16
declaration is cancelled under this Part or expires, the 17
Commissioner must: 18
(a) publish notice of the cancellation or expiration in the 19
Gazette and in at least one newspaper circulating 20
throughout the State, and 21
(b) give notice of the cancellation or expiration to the 22
commissioner (by whatever name called) of the police 23
force or police service of the State or Territory in which the 24
declaration was made and, if the declaration was made by 25
a court, a registrar of that court. 26
Division 3 Registration of interstate control order in 27
New South Wales 28
27M Application for registration of interstate control order in New 29
South Wales 30
(1) The Commissioner may apply to the registrar for the registration 31
of an interstate control order. 32
(2) An application for registration must: 33
(a) be made in writing, and 34
(b) be accompanied by an affidavit from the Commissioner 35
including or accompanied by the following: 36
(i) a copy of the interstate control order, 37
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(ii) enough information to satisfy the registrar that the 1
order is an interstate control order that is in force. 2
(3) The application must state: 3
(a) whether the Commissioner believes it is necessary for the 4
interstate control order to be adapted or modified for its 5
effective operation in New South Wales, and 6
(b) if so, the details of the adaptation or modification that the 7
Commissioner believes to be necessary. 8
(4) An application for the registration of an interstate control order 9
does not need to be served on the respondent. 10
27N When interstate control order cannot be registered 11
An application for registration of an interstate control order 12
cannot be made, and an interstate control order cannot be 13
registered, if: 14
(a) the respondent is subject to a control order or interim 15
control order under Part 3, or 16
(b) any of the following apply to the order: 17
(i) the law of the jurisdiction in which the order was 18
made specifies a period within which the respondent 19
may appeal against the order, and that period is still 20
running, 21
(ii) the determination of an application by the 22
respondent for leave to appeal against the order 23
(whether made before or after any appeal period has 24
expired) is pending, 25
(iii) the determination of an appeal by the respondent 26
against the order is pending. 27
27O Registration of interstate control order 28
(1) The registrar must register an interstate control order that is the 29
subject of an application under this Division if the registrar is 30
satisfied of the following: 31
(a) that the order is in force, 32
(b) that the order was served, or taken to be served, on the 33
respondent under the law of the jurisdiction where the 34
order was made, 35
(c) that section 27N does not prevent registration of the order, 36
(d) that the order does not need to be adapted or modified for 37
its effective operation in New South Wales. 38
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Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9 Schedule 1
(2) If the registrar considers that the order needs to be adapted or 1
modified for its effective operation in New South Wales, the 2
registrar must refer the application to the Court. 3
27P Referral of application to Court for adaptation or modification 4
(1) If an application is referred to the Court under section 27O, the 5
Commissioner must serve a copy of the application, with any 6
accompanying affidavit, and an appearance notice, personally on 7
the respondent. 8
(2) The application may be heard in the respondent's absence if the 9
Court is satisfied that a copy of the application and an appearance 10
notice were served on the respondent under subsection (1). 11
(3) In this section: 12
appearance notice means a notice in writing stating the 13
following in relation to an interstate control order: 14
(a) that an application for the registration of the interstate 15
control order has been referred to the Court, 16
(b) when and where the application is to be heard, 17
(c) that the respondent is required to appear at the hearing, 18
(d) that the interstate control order, or the interstate control 19
order as varied by the Court, may be registered in the 20
respondent's absence if the respondent fails to appear at 21
the hearing. 22
27Q Determination of application for registration 23
(1) On hearing an application referred to it under section 27O the 24
Court may direct the registrar to register the order: 25
(a) with any adaptations or modifications that the Court 26
considers necessary or desirable for its effective operation 27
in New South Wales, or 28
(b) without any adaptations or modifications. 29
(2) Before giving a direction under subsection (1), the Court must: 30
(a) be satisfied of the matters set out in section 27O (1) (a)-(c), 31
and 32
(b) consider: 33
(i) anything that could be considered by the Court if the 34
application were an application for a control order 35
under this Act, and 36
(ii) any changes in the respondent's circumstances since 37
the interstate control order was made. 38
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(3) The registrar must register the interstate control order in 1
accordance with the direction of the Court. 2
27R Period of registration 3
(1) On registering an interstate control order, the registrar is to 4
specify the date on which the registration expires. 5
(2) The date specified by the registrar is to be the date on which the 6
interstate control order would cease to be in force in the 7
jurisdiction in which it was made if it were not sooner revoked. 8
(3) The registration of the interstate control order expires on the 9
specified date. 10
(4) Subsections (1)-(3) do not apply if, under the law of the 11
jurisdiction in which the interstate control order was made, the 12
interstate control order remains in force for an indefinite period, 13
in which case: 14
(a) on registering the order--the registrar is to specify that the 15
registration is in force for an indefinite period, and 16
(b) the registration of the interstate control order does not 17
expire. 18
27S Notice of registration 19
(1) Not later than 2 working days after registering an interstate 20
control order, the registrar must give the Commissioner a 21
certificate of the registration with a copy of the registered 22
interstate control order attached. 23
(2) As soon as practicable after receiving a copy of the registered 24
interstate control order, the Commissioner must: 25
(a) serve a copy of the order personally on the respondent, and 26
(b) publish notice of the registration of the interstate control 27
order in the Gazette and in at least one newspaper 28
circulating throughout the State. 29
27T Commencement and duration of registered interstate control 30
order 31
A registered interstate control order: 32
(a) comes into force in New South Wales on the day on which 33
the respondent is served personally with a copy of the 34
order, and 35
(b) remains in force in New South Wales until one of the 36
following occurs: 37
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(i) the registration of the order expires in accordance 1
with section 27R, 2
(ii) the registration of the order is cancelled under this 3
Part. 4
27U Effect of registration of interstate control order 5
A registered interstate control order that has come into force 6
under section 27T operates in New South Wales as if it were a 7
control order made under Part 3 but the provisions of Part 3 (other 8
than Division 3) do not apply in relation to the registered 9
interstate control order. 10
27V Variation or revocation of interstate control order in jurisdiction 11
where originally made 12
(1) If an interstate control order is varied by a court in the jurisdiction 13
in which it was made: 14
(a) the variations to the order may be registered under this Part 15
in the same way as the interstate control order is registered, 16
whether the variations were made before or after 17
registration of the interstate control order, and 18
(b) the provisions of this Part apply accordingly with all 19
necessary modifications. 20
(2) Subsection (3) applies to a registered interstate control order if: 21
(a) the order is revoked by a court in the jurisdiction in which 22
the order was made, and 23
(b) the registrar receives notice of that revocation from an 24
officer of that court or from the Commissioner. 25
(3) On receiving notice of the revocation, the registrar must: 26
(a) cancel the registration of the order without delay, and the 27
cancellation takes effect immediately, and 28
(b) give the Commissioner written notice of that cancellation. 29
(4) As soon as practicable after receiving notice of the cancellation 30
of the registration of an interstate control order, the 31
Commissioner must serve a copy of the notice personally on the 32
respondent. 33
27W Cancellation of registration of interstate control order by Court 34
(1) The Court may, on application by the respondent, cancel the 35
registration of an interstate control order if satisfied that the 36
control order should not have been registered in accordance with 37
section 27O. 38
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(2) The Commissioner is a party to the application. 1
(3) If the registration of an interstate control order is cancelled under 2
this section, the interstate control order ceases to have effect in 3
New South Wales and the respondent is taken not to have 4
committed any offence under Division 3 of Part 3 as a controlled 5
member. 6
(4) Nothing in this section authorises the Court to reconsider the 7
merits of the interstate control order. 8
27X Cancellation of registration of interstate control order at request of 9
Commissioner 10
(1) The Commissioner may, at any time while an interstate control 11
order is registered under this Part, apply to the registrar to cancel 12
the registration of the order. 13
(2) On receiving an application under this section, the registrar must: 14
(a) cancel the registration of the order without delay, and the 15
cancellation takes effect immediately, and 16
(b) give the Commissioner written notice of the cancellation. 17
(3) As soon as practicable after receiving notice of the cancellation 18
of the registration of an interstate control order, the 19
Commissioner must serve a copy of the notice of cancellation 20
personally on the respondent. 21
27Y Registration of interstate control order cancelled automatically in 22
certain circumstances 23
The registration of an interstate control order under this Part is 24
immediately cancelled if: 25
(a) the person to whom the order relates becomes subject to a 26
control order or interim control order under Part 3, or 27
(b) the order was made in reliance on the person to whom it 28
relates: 29
(i) being a member of a particular organisation that is 30
subject to an interstate declaration that is no longer 31
in force, or 32
(ii) associating with a member of a particular 33
organisation that is subject to an interstate 34
declaration that is no longer in force. 35
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Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9 Schedule 1
[18] Section 34 Immunity from liability 1
Insert at the end of the section: 2
(2) An Australian legal practitioner representing a person who is 3
entitled to make submissions at the hearing of an application 4
under Part 2 has the same protection and immunity as a barrister 5
(within the meaning of the Legal Profession Act 2004) has in 6
appearing for a party in proceedings in the Supreme Court. 7
[19] Section 36 Proceedings for offences 8
Omit the note to the section. Insert instead: 9
Note. Offences under section 26 (1A) or (1B) or 26A remain indictable 10
offences. Chapter 5 of the Criminal Procedure Act 1986 requires those 11
offences to be dealt with summarily unless the prosecutor or defendant 12
elects to have them dealt with on indictment. 13
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