Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to disrupt and restrict the activities of organisations
(declared organisations):

(a) whose members associate for the purpose of organising, planning, facilitating,
supporting or engaging in serious criminal activity and that represent a risk to
public safety and order in New South Wales, and

(b) which are the subject of a declaration by an eligible Judge (a Supreme Court
judge acting as persona designata).

The Bill provides for the Supreme Court to make interim control orders in relation to
members (controlled members) of declared organisations, which may later be
confirmed (or confirmed with variations) by confirmatory control orders. The
making of orders has the following ramifications for the controlled member:

(a) the controlled member will commit an offence if he or she associates with
another controlled member of the particular declared organisation,

(b) any authorisation to carry on certain specified activities will, on the making of
an interim control order, be suspended and, on the making of the confirmatory
control order, be cancelled.

---

Explanatory note page 2

Crimes (Criminal Organisations Control) Bill 2009
Explanatory note

Outline of provisions

Part 1 Preliminary
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 the date of assent
to the proposed Act.

Clause 3 defines certain words and expressions used in the proposed Act, including
serious criminal activity, member of an organisation and criminal intelligence.

Clause 4 provides for the extraterritorial operation of the proposed Act.

Part 2 Declared organisations
Clause 5 provides for Judges of the Supreme Court who consent to being eligible
Judges for the purposes of the proposed Part to be declared to be eligible Judges by
the Attorney General.

Clause 6 enables the Commissioner of Police to apply for a declaration in relation to
a particular organisation as described in the Overview above and sets out the
requirements for such an application.

Clause 7 requires notice of the making of the application to be published in the
Gazette and in at least one newspaper circulating throughout New South Wales
inviting members of the organisation concerned and other persons who may be
directly affected (whether or not adversely) by the outcome of the application to
make submissions to the eligible Judge at a hearing to be held on a date specified in
the notice.

Clause 8 gives the persons referred to in the notice the right to be present and to
make submissions at the hearing unless information to be disclosed at the hearing
involves criminal intelligence. Other persons who may be directly affected may also
be present and make submissions with leave. Provision is also made to enable
submissions to be made in private in certain circumstances.

Clause 9 enables the eligible Judge to make the declaration sought by the
Commissioner if the eligible Judge is satisfied that members of the organisation
associate for the purpose of organising, planning, facilitating, supporting or engaging
in serious criminal activity and the organisation represents a risk to public safety and
order in this State. The proposed section sets out the matters the eligible Judge may
take into account in deciding whether or not to make a declaration.

Clause 10 requires notice to be given of the making of the declaration in the Gazette
and in at least one newspaper circulating throughout the State.

Clause 11 provides for the duration of declarations.

Clause 12 provides for the revocation of declarations.

---

Explanatory note page 3

Crimes (Criminal Organisations Control) Bill 2009
Explanatory note
Clause 13 provides that the rules of evidence do not apply to the hearing of an
application for a declaration and that the eligible Judge is not required to provide
reasons for making a declaration.

Part 3 Control of members of declared organisations
Division 1 Interim control orders
Clause 14 enables the Supreme Court, on the application of the Commissioner of
Police, to make an interim control order in relation to one or more members of a
declared organisation pending the hearing and final determination of a confirmatory
control order in relation to the member or members concerned. The order may be
made in the absence of, and without notice to, the member concerned but only takes
effect when the member is notified of its making in accordance with proposed
sections 15 and 16.

Clause 15 states that an interim control order takes effect when notice of it is served
personally on the member concerned.

Clause 16 sets out the information that must be included in the notice served on the
member. This includes the grounds on which the interim control order was made, an
explanation of the ramifications of the making of the order and an explanation of the
right to object to the making of the order at the hearing for the making of the
confirmatory control order.

Clause 17 provides for the duration of interim control orders.

Clause 18 requires the Supreme Court to hear applications for confirmatory control
orders as expeditiously as possible in hardship cases.

Division 2 Control orders
Clause 19 provides for the making by the Supreme Court of confirmatory control
orders.

Clause 20 enables the member the subject of an order to appear at the hearing for the
making of the order and to make submissions in relation to the application for the
control order.

Clause 21 provides for the form of a control order, including a requirement that it
specify the right to appeal against its making.

Clause 22 provides for when control orders take effect.

Clause 23 provides for the duration of control orders.

Clause 24 provides for appeals against the making of control orders.

Clause 25 provides for the variation and revocation of control orders.

---

Explanatory note page 4

Crimes (Criminal Organisations Control) Bill 2009
Explanatory note
Division 3 Consequences of making of interim control orders
and control orders
Clause 26 makes it an offence for a controlled member of a particular declared
organisation to associate with another controlled member of the same organisation.

Clause 27 provides for the suspension and revocation of authorisations to carry on
prescribed activities held by a controlled member on the taking of effect of interim
control orders and control orders, respectively.

Part 4 Miscellaneous
Clause 28 provides protections for criminal intelligence.

Clause 29 provides protections for certain submissions.

Clause 30 provides for the Commissioner of Police to keep a register of information
relating to declared organisations and controlled members.

Clause 31 requires the Attorney General to be given notice of applications under the
proposed Act and the right to be present and to make submissions at the hearings of
the applications.

Clause 32 states the burden of proof in proceedings under the proposed Act.

Clause 33 enables the Commissioner of Police to delegate functions with respect to
the categorisation of information as criminal intelligence.

Clause 34 provides immunity from civil and criminal liability for persons exercising
functions under the proposed Act and for the Crown.

Clause 35 prevents challenge or review by a court (other than by way of appeal
under proposed section 24) or administrative body of the exercise of certain functions
under the proposed Act.

Clause 36 provides for proceedings for offences under the proposed Act or
regulations made under the proposed Act.

Clause 37 enables the making of rules of court.

Clause 38 enables the Governor to make regulations for the purposes of the
proposed Act.

Clause 39 provides for the Ombudsman to keep under scrutiny, and report on, the
exercise of powers by police under the proposed Act for a period of 2 years after the
commencement of the proposed Act.

Clause 40 provides for the review of the proposed Act in 5 years from the date of
assent to the proposed Act.

Schedule 1 Amendment of Acts
Schedule 1.1 amends the Bail Act 1978 so that there will be a neutral presumption
against bail in relation to the offence under section 26 (Association between

---

Explanatory note page 5

Crimes (Criminal Organisations Control) Bill 2009
Explanatory note
members of declared organisations subject to interim control order or control order)
of the proposed Act.

Schedule 1.2 amends the Criminal Assets Recovery Act 1990 so that its provisions
will apply to persons engaged in offences under section 93T (Participation in
criminal groups) of the Crimes Act 1900.

Schedule 1.3 amends the Criminal Procedure Act 1986 so that the indictable offence
in section 26 of the proposed Act may be prosecuted summarily.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

---

[Index] [Search] [Download] [Bill] [Help]