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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Serious and Organised Crime (Control)
Bill 2007
A BILL FOR
An Act to provide for the making of declarations and orders for the purpose
of disrupting and restricting the activities of criminal organisations, their
members and associates; to make related amendments to the Bail
Act 1985, the Criminal Law Consolidation Act 1935, the
Freedom of Information Act 1991 and the Summary Offences
Act 1953; and for other purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Interpretation
4 Objects
5 Burden of
proof
6 Extra-territorial operation
7 Delegation
Part 2—Declared organisations
8 Commissioner
may apply for declaration
9 Publication of notice of
application
10 Attorney-General may make declaration
11 Notice of
declaration
12 Revocation of declaration
13 Disclosure of reasons and
criminal intelligence
Part 3—Control orders
14 Court may make
control order
15 Form of control order
16 Service
17 Right of
objection
18 Procedure on hearing of notice of objection
19 Appeals to
Supreme Court
20 Variation or revocation of control order
21 Criminal
intelligence
22 Offence to contravene or fail to comply with control
order
Part 4—Public safety orders
Division 1—Making of public safety
orders
23 Senior police officer may make public safety
order
24 Variation and revocation of public safety order
25 Certain
variations and orders must be authorised by Court
26 Right of
objection
27 Procedure on hearing of notice of objection
28 Appeals to
Supreme Court
29 Disclosure of reasons and criminal intelligence
Division 2—Service and
notification
30 Service and notification
31 Urgent orders
Division 3—Enforcement and evidentiary
provisions
32 Offence to contravene or fail to comply with public
safety order
33 Power to search premises and
vehicles
34 Evidentiary
Part 5—Offences
35 Criminal
associations
36 Provision of personal details
Part 6—Reviews and expiry of Act
37 Annual
review and report as to exercise of powers
38 Review of operation of
Act
39 Expiry of Act
Part 7—Miscellaneous
40 Immunity from
liability
41 Protection from proceedings
42 Prosecution of offence as a
summary offence
43 Regulations
Schedule 1—Related amendments
Part 1—Preliminary
1 Amendment
provisions
Part 2—Amendment of Bail
Act 1985
2 Amendment of section 10A—Presumption against
bail in certain cases
Part 3—Amendment of Criminal Law Consolidation
Act 1935
3 Substitution of section
248
248 Threats or reprisals relating to persons involved in
criminal investigations or judicial proceedings
4 Substitution of
section 250
250 Threats or reprisals against public
officers
Part 4—Amendment of Freedom of Information
Act 1991
5 Amendment of Schedule 1—Exempt
documents
Part 5—Amendment of Summary Offences
Act 1953
6 Repeal of section 13
7 Amendment of section
74BB—Fortification removal order
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Serious and Organised Crime (Control)
Act 2007.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, unless the contrary intention appears—
authorisation order means an order of the Court under
section 25;
Commissioner means the Commissioner of Police;
control order means an order of the Court under
section 14;
Court means the Magistrates Court;
criminal intelligence means information relating to actual or
suspected criminal activity (whether in this State or elsewhere) the disclosure
of which could reasonably be expected to prejudice criminal investigations, to
enable the discovery of the existence or identity of a confidential source of
information relevant to law enforcement or to endanger a person's life or
physical safety;
declared organisation means an organisation subject to a
declaration by the Attorney-General under section 10;
defendant, in relation to a control order—see
section 14;
member, in relation to an organisation,
includes—
(a) in the case of an organisation that is a body corporate—a
director or an officer of the body corporate; and
(b) in any case—
(i) an associate member or prospective member (however described) of the
organisation; and
(ii) a person who identifies himself or herself, in some way, as belonging
to the organisation; and
(iii) a person who is treated by the organisation or persons who belong to
the organisation, in some way, as if he or she belongs to the
organisation;
organisation means any incorporated body or unincorporated
group (however structured), whether or not the body or group is based outside
South Australia, consists of persons who are not ordinarily resident in South
Australia or is part of a larger organisation;
personal details, in relation to a person,
means—
(a) the person’s full name; and
(b) the person’s date of birth; and
(c) the address of where the person is living; and
(d) the address of where the person usually lives; and
(e) the person’s business address;
public safety order means an order made by a senior police
officer under section 23;
senior police officer means a police officer of or above the
rank of inspector;
serious criminal activity means the commission of serious
criminal offences;
serious criminal offences means—
(a) indictable offences (other than indictable offences of a kind
prescribed by regulation); or
(b) summary offences of a kind prescribed by regulation.
(1) The objects of this Act are—
(a) to disrupt and restrict the activities of—
(i) organisations involved in serious crime; and
(ii) the members and associates of such organisations; and
(b) to protect members of the public from violence associated with such
criminal organisations.
(2) Without derogating from subsection (1), it is not the intention
of the Parliament that the powers in this Act be used in a manner that would
diminish the freedom of persons in this State to participate in advocacy,
protest, dissent or industrial action.
(1) Any question of fact to be decided by a court in proceedings under
this Act is to be decided on the balance of probabilities.
(2) This section does not apply in relation to proceedings for an offence
against this Act.
It is the intention of the Parliament that this Act apply within the State
and outside the State to the full extent of the extra-territorial legislative
capacity of the Parliament.
The Commissioner—
(a) may not delegate the function of classifying information as criminal
intelligence for the purposes of this Act except to a Deputy Commissioner or
Assistant Commissioner of Police; and
(b) may not delegate any other function or power of the Commissioner under
this Act except to a senior police officer.
8—Commissioner
may apply for declaration
(1) The Commissioner may apply to the Attorney-General for a declaration
under this Part in relation to an organisation.
(2) The application must—
(a) be in writing; and
(b) identify the organisation in respect of which the declaration is
sought; and
(c) set out the grounds on which the declaration is sought; and
(d) set out the information supporting the grounds on which the
declaration is sought; and
(e) set out details of any previous application for a declaration in
respect of the organisation and the outcome of that application; and
(f) be supported by a statutory declaration from the Commissioner, or
statutory declarations from other senior police officers, verifying the contents
of the application.
(3) The application may identify the organisation by specifying the name
of the organisation or the name by which the organisation is commonly known or
by providing other particulars about the organisation.
9—Publication
of notice of application
If the Commissioner makes an application under this Part in relation to an
organisation, the Attorney-General must publish a notice in the Gazette and in a
newspaper circulating throughout the State—
(a) specifying that an application has been made for a declaration under
this Part in respect of the organisation; and
(b) inviting members of the public to make submissions to the
Attorney-General in relation to the application within 28 days of the date of
publication of the notice.
10—Attorney-General
may make declaration
(1) If, on the making of an application by the Commissioner under this
Part in relation to an organisation, the Attorney-General is satisfied
that—
(a) members of the organisation associate for the purpose of organising,
planning, facilitating, supporting or engaging in serious criminal activity;
and
(b) the organisation represents a risk to public safety and
order,
the Attorney-General may make a declaration under this section in respect
of the organisation.
(2) The Attorney-General must not make a declaration under this section in
relation to an application unless the period for making submissions in relation
to the application referred to in section 9(b) has expired.
(3) In considering whether or not to make a declaration under this
section, the Attorney-General may have regard to any of the following:
(a) any information suggesting that a link exists between the organisation
and serious criminal activity;
(b) any criminal convictions recorded in relation to—
(i) current or former members of the organisation; or
(ii) persons who associate, or have associated, with members of the
organisation;
(c) any information suggesting that—
(i) current or former members of the organisation; or
(ii) persons who associate, or have associated, with members of the
organisation,
have been, or are, involved in serious criminal activity (whether directly
or indirectly and whether or not such involvement has resulted in any criminal
convictions);
(d) any information suggesting that members of an interstate or overseas
chapter or branch of the organisation associate for the purpose of organising,
planning, facilitating, supporting or engaging in serious criminal
activity;
(e) any submissions received from members of the public in relation to the
application in accordance with section 9;
(f) any other matter the Attorney-General considers relevant.
(4) The Attorney-General may, for the purposes of making a declaration
under this section, be satisfied that members of an organisation associate for
the purpose of organising, planning, facilitating, supporting or engaging in
serious criminal activity—
(a) whether or not all the members associate for that purpose or only some
of the members; and
(b) whether or not members associate for the purpose of organising,
planning, facilitating, supporting or engaging in the same serious criminal
activities or different ones; and
(c) whether or not the members also associate for other
purposes.
As soon as practicable after making a declaration under this Part, the
Attorney-General must publish notice of the declaration in the Gazette and in a
newspaper circulating throughout the State.
(1) The Attorney-General may, at any time, revoke a declaration under this
Part.
(2) The Attorney-General must, as soon as practicable after revoking a
declaration, publish notice of the revocation in the Gazette and in a newspaper
circulating generally throughout the State.
13—Disclosure of
reasons and criminal intelligence
(1) If the Attorney-General makes a declaration or decision under this
Part, the Attorney-General is not required to provide any grounds or reasons for
the declaration or decision (other than to a person conducting a review under
Part 6 if that person so requests).
(2) No information provided by the Commissioner to the Attorney-General
for the purposes of this Part may be disclosed to any person (except to a person
conducting a review under Part 6 or a person to whom the Commissioner authorises
its disclosure) if the information is classified by the Commissioner as criminal
intelligence.
14—Court
may make control order
(1) The Court must, on application by the Commissioner, make a control
order against a person (the defendant) if the Court is satisfied
that the defendant is a member of a declared organisation.
(2) The Court may, on application by the Commissioner, make a control
order against a person (the defendant) if the Court is satisfied
that—
(a) the defendant—
(i) has been a member of a declared organisation or engages, or has
engaged, in serious criminal activity; and
(ii) regularly associates with members of a declared organisation;
or
(b) the defendant engages, or has engaged, in serious criminal activity
and regularly associates with other persons who engage, or have engaged, in
serious criminal activity,
and that the making of the order is appropriate in the
circumstances.
(3) A control order may be issued on an application made without notice to
any person.
(4) The grounds of an application for a control order must be verified by
affidavit.
(5) A control order—
(a) may prohibit the defendant from—
(i) associating or communicating with specified persons or persons of a
specified class; or
(ii) entering or being in the vicinity of specified premises or premises
of a specified class; or
(iii) possessing specified articles or articles of a specified class;
and
(b) if the defendant is a member of a declared organisation, must prohibit
the defendant from—
(i) associating with other persons who are members of declared
organisations; and
(ii) possessing—
(A) a dangerous article; or
(B) a prohibited weapon,
(within the meaning of section 15 of the Summary Offences
Act 1953),
except as may be specified in the order.
(6) In considering whether or not to make a control order under
subsection (2) or in considering the prohibitions that may be included in a
control order under subsection (1) or (2), the Court must have regard to
the following:
(a) whether the defendant's behaviour, or history of behaviour, suggests
that there is a risk that the defendant will engage in serious criminal
activity;
(b) the extent to which the order might assist in preventing the defendant
from engaging in serious criminal activity;
(c) the prior criminal record (if any) of the defendant and any persons
specified in the application as persons with whom the defendant regularly
associates;
(d) any legitimate reason the defendant may have for associating with any
person specified in the application;
(e) any other matter that, in the circumstances of the case, the Court
considers relevant.
(7) The Court may, on making a control order, make any consequential or
ancillary orders it thinks fit, including, in a case where the control order
prohibits the possession of an article or an article of a specified class,
orders—
(a) providing for the confiscation and disposal of the article or such an
article; and
(b) if the circumstances of the case so require, authorising a police
officer to enter any premises in which the article or such an article is
suspected to be, and search for and take possession of the article or such an
article.
(8) For the purposes of this section, a person may associate
with another person by any means including communicating with that person by
letter, telephone or facsimile or by email or other electronic means.
(1) A control order must—
(a) be directed at the person specified as the defendant in the
application; and
(b) set out the terms of the order; and
(c) specify whether the order is made under section 14(1), (2)(a) or
(2)(b); and
(d) subject to subsection (2)—include a statement of the
grounds on which the order has been issued; and
(e) set out an explanation of the right of objection under
section 17.
(2) A statement of the grounds on which a control order has been issued
must not contain information that must not be disclosed in accordance with
section 21.
(3) A copy of the affidavit verifying the grounds on which the application
was made must be attached to the control order unless disclosure of information
included in the affidavit would be in breach of section 21.
(4) If disclosure of information included in the affidavit would be in
breach of section 21, an edited copy of the affidavit, from which the
information that cannot be disclosed has been removed or erased, may be attached
to the control order.
(1) Subject to subsection (3), a control order must be served on the
defendant personally.
(2) If a police officer has reasonable cause to suspect that a person is a
person on whom a control order is required to be served in accordance with this
section, the officer may—
(a) require the person to state all or any of the person's personal
details; and
(b) require the person to remain at a particular place
for—
(i) so long as may be necessary for the order to be served on the person;
or
(ii) 2 hours,
whichever is the lesser; and
(c) if the person refuses or fails to comply with a requirement under a
preceding paragraph, or the officer has reasonable cause to suspect that the
requirement will not be complied with, arrest and detain the person in custody
(without warrant) for the period referred to in paragraph (b).
(3) If the person serving a control order—
(a) has reasonable cause to believe that the defendant is present at any
premises; but
(b) is unable to gain access to the defendant at the premises for the
purpose of effecting personal service of the order on the defendant,
the control order may be served on the defendant by—
(c) leaving it for the defendant at the premises with someone apparently
over the age of 16 years; or
(d) if the person serving the order is unable to gain access to such a
person at the premises—affixing it to the premises at a prominent place at
or near to the entrance to the premises.
(4) A control order is not binding on the defendant until it has been
served on the defendant in accordance with this section.
(1) A person on whom a control order has been served may, within 14 days
of service of the order or such longer period as the Court may allow, lodge a
notice of objection with the Court.
(2) The grounds of the objection must be stated fully and in detail in the
notice of objection.
(3) A copy of the notice of objection must be served by the objector on
the Commissioner by registered post at least 7 days before the day appointed for
hearing of the notice.
18—Procedure
on hearing of notice of objection
(1) The Court must, when determining a notice of objection, consider
whether, in the light of the evidence presented by both the Commissioner and the
objector, sufficient grounds existed for the making of the control
order.
(2) The Court may, on hearing a notice of objection—
(a) confirm, vary or revoke the control order; and
(b) make any other orders of a kind that could have been made by the Court
on the making of the control order.
(3) Without derogating from subsection (2), if the
defendant—
(a) is a member of a declared organisation; and
(b) satisfies the Court that there is good reason why he or she should be
allowed to associate with a particular member, or particular members, of a
declared organisation,
the Court may vary the order to specify that the defendant is not
prohibited from associating with that member or those members, subject to such
conditions (if any) as the Court thinks fit.
(1) The Commissioner or an objector may appeal to the Supreme Court
against a decision of the Court on a notice of objection.
(2) An appeal lies as of right on a question of law and with permission on
a question of fact.
(3) An appeal must be commenced within the time, and in accordance with
the procedure, prescribed by rules of the Supreme Court.
(4) The commencement of an appeal under this section does not affect the
operation of the control order to which the notice of objection
related.
(5) On an appeal, the Supreme Court may—
(a) confirm, vary or reverse the decision subject to appeal; and
(b) make any consequential or ancillary order.
20—Variation or
revocation of control order
(1) The Court may vary or revoke a control order on
application—
(a) by the Commissioner; or
(b) by the defendant.
(2) An application for variation or revocation of a control order may only
be made by the defendant with the permission of the Court and permission is only
to be granted if the Court is satisfied there has been a substantial change in
the relevant circumstances since the order was made or last varied.
(3) The Court must, before varying or revoking a control order under this
section—
(a) allow all parties a reasonable opportunity to be heard on the matter;
and
(b) have regard to the same factors that the Court is required to have
regard to in considering whether or not to make a control order and in
considering the terms of a control order.
(4) If an application for variation or revocation of a control order is
made by the defendant, the application must be supported by oral evidence given
on oath.
(1) No information provided by the Commissioner to a court for the
purposes of proceedings relating to the making, variation or revocation of a
control order may be disclosed to any person (except to the Attorney-General, a
person conducting a review under Part 6, a court or a person to whom the
Commissioner authorises its disclosure) if the information is properly
classified by the Commissioner as criminal intelligence.
(2) In any proceedings relating to the making, variation or revocation of
a control order, the court determining the proceedings—
(a) must, on the application of the Commissioner, take steps to maintain
the confidentiality of information properly classified by the Commissioner as
criminal intelligence, including steps to receive evidence and hear argument
about the information in private in the absence of the parties to the
proceedings and their representatives; and
(b) may take evidence consisting of, or relating to, information that is
so classified by the Commissioner by way of affidavit of a police officer of or
above the rank of superintendent.
22—Offence to
contravene or fail to comply with control order
(1) A person who contravenes or fails to comply with a control order is
guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(2) A person does not commit an offence against this section in respect of
an act or omission unless the person knew that the act or omission constituted a
contravention of, or failure to comply with, the order or was reckless as to
that fact.
Division 1—Making
of public safety orders
23—Senior
police officer may make public safety order
(1) A senior police officer may make an order (a public safety
order) in respect of a person or a class of persons if satisfied
that—
(a) the presence of the person, or of persons of that class, at any
premises or event, or within an area, poses a serious risk to public safety or
security; and
(b) the making of the order is appropriate in the circumstances.
(2) In considering whether or not to make a public safety order in
relation to a person or class of persons, the senior police officer must have
regard to the following:
(a) whether the person or members of the class of persons have previously
behaved in a way that posed a serious risk to public safety or security or have
a history of engaging in serious criminal activity;
(b) whether the person or members of the class of persons—
(i) are, or have been, members of a declared organisation; or
(ii) are, or have been, subject to control orders; or
(iii) associate, or have associated, with members of a declared
organisation or persons subject to control orders;
(c) if advocacy, protest, dissent or industrial action is the likely
reason for the person or members of the class of persons being present at the
relevant premises or event, or within the relevant area—the public
interest in maintaining freedom to participate in such activities;
(d) whether the degree of risk involved justifies the imposition of the
prohibitions to be specified in the order (having regard, in particular, to any
legitimate reason the person or members of the class of persons may have for
being present at the relevant premises or event, or within the relevant
area);
(e) the extent to which the making of the order will mitigate any risk to
public safety or security;
(f) the extent to which the order is necessary having regard to other
measures reasonably available to mitigate the risk;
(g) any other matters the officer thinks fit.
(3) A public safety order may prohibit a specified person or specified
class of persons from—
(a) entering or being on specified premises; or
(b) attending a specified event; or
(c) entering or being within a specified area.
(4) If a public safety order prohibits attendance at a specified event,
the order—
(a) may, in specifying the event, include associated events or activities
(provided that the associated events or activities occur on the same day as the
principal event or part of the principal event); and
(b) must define the area or areas in which the event takes place for the
purposes of the order; and
(c) must define when the event is taken to start and finish for the
purposes of the order.
(5) Despite any other provision of this section, a senior police officer
must not make a public safety order that would prohibit a person or class of
persons from being present at any premises or event, or within an area,
if—
(a) those persons are members of an organisation formed for, or whose
primary purpose is, non-violent advocacy, protest, dissent or industrial action;
and
(b) the officer believes that advocacy, protest, dissent or industrial
action is the likely reason for those persons to be present at the premises or
event or within the area.
(6) Subject to section 25, a public safety order operates for the
period specified in the order.
(7) A public safety order may prohibit a person from entering premises or
being on premises, whether or not the person has a legal or equitable interest
in the premises, but must not prohibit a person from entering premises or being
on premises that are the person's principal place of residence.
(8) For the purposes of this section, the presence of a person or persons
at premises or an event or within an area poses a serious risk to public
safety or security if there is a serious risk that the presence of the
person or persons might result in—
(a) the death of, or serious physical harm to, a person; or
(b) serious damage to property.
(9) In this section—
damage, in relation to property, includes the
following:
(a) destruction of the property;
(b) an alteration to the property that depreciates its value;
(c) rendering the property useless or inoperative;
(d) in relation to an animal—injuring, wounding or killing the
animal.
24—Variation and
revocation of public safety order
A public safety order may be varied or revoked by a senior police officer
at any time and must be revoked if the Commissioner is satisfied that the
grounds for making the order no longer exist.
25—Certain
variations and orders must be authorised by Court
(1) Despite any other provision of this Division, a senior police officer
must not—
(a) make a public safety order that would operate for a period of more
than 72 hours or, in the case of a public safety order relating to a
specified event that occurs over a period in excess of 72 hours, the total
duration of the event; or
(b) vary a public safety order so that it operates for a period of more
than 72 hours or, in the case of a public safety order relating to a
specified event that occurs over a period in excess of 72 hours, the total
duration of the event; or
(c) make a public safety order relating to a person (other than a person
who is a member of a declared organisation) if that person has, within the
immediately preceding period of 72 hours, been subject to another public safety
order,
unless authorised by order of the Court under this section.
(2) A senior police officer may apply to the Court for an order (an
authorisation order) authorising the senior police officer to
make—
(a) a public safety order; or
(b) a variation to a public safety order,
of a kind specified in subsection (1).
(3) An authorisation order may be made by the Court on an application made
without notice to any person.
(4) The grounds of an application for an authorisation order must be
verified by affidavit.
(5) An application to the Court for an authorisation order may be made and
dealt with by a Magistrate by telephone as follows:
(a) the applicant must inform the Magistrate—
(i) of the applicant's name and rank; and
(ii) that he or she is a senior police officer,
and the Magistrate, on receiving that information, is entitled to assume,
without further inquiry, that the applicant is authorised to make an application
under this section;
(b) the Magistrate must satisfy himself or herself (as far as practicable)
that the case is of sufficient urgency to justify dealing with the application
without requiring the personal attendance of the applicant, by the oral
questioning of the applicant and any other available witnesses by
telephone;
(c) if the Magistrate is not satisfied that it is appropriate to deal with
the application without requiring the personal attendance of the applicant, the
Magistrate may adjourn the hearing of the application to a time and place fixed
by the Magistrate and inform the applicant of the time and place so
fixed;
(d) if the Magistrate is satisfied that it is appropriate to deal with the
application without requiring the personal attendance of the applicant, the
applicant must inform the Magistrate of the grounds on which the applicant
proposes to make the order or the variation;
(e) if the Magistrate is then satisfied that it is appropriate for the
applicant to make the order or variation, the Magistrate must inform the
applicant of the facts that justify, in his or her opinion, the making of the
order or variation, and must not proceed to make the order authorising the order
or variation unless the applicant undertakes to make an affidavit verifying
those facts;
(f) if the applicant gives such an undertaking, the Magistrate may then
make the order, noting on the order the facts that justify, in the view of the
Magistrate, the making of the order or variation and informing the applicant of
the terms of the order;
(g) the applicant must, as soon as practicable after the making of the
order, forward to the Magistrate an affidavit verifying the facts referred to in
paragraph (e);
(h) the Magistrate must, as soon as practicable after the making of the
authorisation order, forward to the applicant a copy of the order.
(6) A Magistrate who makes an authorisation order under
subsection (5) must file the order, or a copy of the order, and the
affidavit forwarded by the applicant, in the Court.
(7) An authorisation order must specify the maximum period for which the
relevant public safety order (as made or varied in accordance with the
authorisation order) may operate.
(1) If the period for which a public safety order (as made or varied) will
operate is more than 7 days, a person bound by the public safety order may
lodge a notice of objection with the Court—
(a) before the end of the period for which the order, or the order as so
varied, operates; or
(b) within 14 days of the date on which the order, or the order as so
varied, became binding on the person,
whichever occurs first.
(2) The grounds of the objection must be stated fully and in detail in the
notice of objection.
(3) A copy of the notice of objection must be served by the objector on
the Commissioner by registered post at least 2 days before the day appointed for
hearing of the notice.
27—Procedure
on hearing of notice of objection
(1) The Court must, when determining a notice of objection, consider
whether, in the light of the evidence presented by both the Commissioner and the
objector, sufficient grounds existed for the making of the public safety order,
any variations made to the public safety order and any relevant authorisation
order.
(2) The Court may, on hearing a notice of objection—
(a) confirm, vary or rescind the public safety order; and
(b) make consequential or ancillary orders.
(1) The Commissioner may appeal to the Supreme Court against a decision of
the Court on an application under section 25.
(2) The Commissioner or an objector may appeal to the Supreme Court
against a decision of the Court on a notice of objection.
(3) An appeal lies as of right on a question of law and with permission on
a question of fact.
(4) An appeal must be commenced within the time, and in accordance with
the procedure, prescribed by rules of the Supreme Court.
(5) The commencement of an appeal under subsection (2) does not
affect the operation of the public safety order to which the notice of objection
related.
(6) On an appeal the Supreme Court may—
(a) confirm, vary or reverse the decision subject to appeal; and
(b) make consequential or ancillary orders.
29—Disclosure
of reasons and criminal intelligence
(1) Subject to section 30, if a senior police officer decides to
make, vary or revoke a public safety order, the officer is not required to
provide any grounds or reasons for the decision to a person affected by the
decision (but is required to provide such grounds or reasons to a person
conducting a review under Part 6 if that person so requests).
(2) Information forming the basis for the making, variation or revocation
of a public safety order must not be disclosed to any person (except to the
Attorney-General, a person conducting a review under Part 6, a court or a person
to whom the Commissioner authorises its disclosure) if, at the time at which the
question of disclosure is to be determined, the information is properly
classified by the Commissioner as criminal intelligence (whether or not the
information was so classified at the time at which the public safety order was
made, varied or revoked).
(3) No information provided by a senior police officer to a court for the
purposes of proceedings relating to the making or variation of a public safety
order or the making of an authorisation order may be disclosed to any person
(except to the Attorney-General, a person conducting a review under Part 6, a
court or a person to whom the Commissioner authorises its disclosure) if the
information is properly classified by the Commissioner as criminal
intelligence.
(4) In any proceedings relating to the making or variation of a public
safety order or the making of an authorisation order, the court determining the
proceedings—
(a) must, on the application of the Commissioner, take steps to maintain
the confidentiality of information that is, at the time of the proceedings,
properly classified by the Commissioner as criminal intelligence, including
steps to receive evidence and hear argument about the information in private in
the absence of the parties to the proceedings and their representatives;
and
(b) may take evidence consisting of, or relating to, information that is
so classified by the Commissioner by way of affidavit of a police officer of or
above the rank of superintendent.
Division 2—Service
and notification
(1) Subject to subsection (5), if a public safety order is made or
varied by a senior police officer, the senior police officer must ensure
that—
(a) a copy of the order as so made or varied; and
(b) a notification in accordance with this section,
is served personally on each person to whom the order relates.
(2) The notification accompanying the order—
(a) must be in writing; and
(b) must specify the date on which the order or variation was made;
and
(c) if the order as so made or varied is one to which section 26
applies—
(i) subject to subsection (3), must include a statement of the
grounds on which the public safety order, any variations made to the public
safety order and any relevant authorisation order was made; and
(ii) include an explanation of the right of objection under
section 26.
(3) A statement of the grounds on which a public safety order, variations
to a public safety order or an authorisation order has been made must not
contain information that must not be disclosed in accordance with
section 29.
(4) If a police officer has reasonable cause to suspect that a person is a
person on whom a public safety order and notification are required to be served
in accordance with this section, the officer may—
(a) require the person to state all or any of the person's personal
details; and
(b) require the person to remain at a particular place
for—
(i) so long as may be necessary for the order and notification required
under this section to be served on the person; or
(ii) 2 hours,
whichever is the lesser; and
(c) if the person refuses or fails to comply with a requirement under a
preceding paragraph or the officer has reasonable cause to suspect that the
requirement will not be complied with, arrest and detain the person in custody
(without warrant) for the period referred to in paragraph (b).
(5) If the person serving a public safety order and
notification—
(a) has reasonable cause to believe that the person to be served is
present at any premises; but
(b) is unable to gain access to the person at the premises for the purpose
of effecting personal service of the order and notification on the
person,
the order and notification may be served on the person by—
(c) leaving them for the person at the premises with someone apparently
over the age of 16 years; or
(d) if the person serving the order and notification is unable to gain
access to such a person at the premises—affixing them to the premises at a
prominent place at or near to the entrance to the premises.
(6) A public safety order (as made or varied) is not binding on a person
to whom the order relates unless the order and notification have been served on
that person in accordance with this section.
(7) Once a public safety order and notification have been served on a
person in accordance with this section, the order is binding on the person,
regardless of whether any other person or persons to whom the order relates have
been so served.
(1) Despite section 30, if a police officer is satisfied that a
public safety order (as made or varied) should become binding on a person as a
matter of urgency—
(a) the officer may communicate the contents of the order, or the order as
so varied, verbally to any person to whom the order relates and advise such
person of the place at which the person may obtain a written copy of the order
and a notification in accordance with this section; and
(b) on the information described in paragraph (a) being communicated
to the person, the order, or the order as so varied, will be binding on the
person.
(2) The police officer who verbally communicates the order to the person
must ensure that—
(a) a copy of the order; and
(b) the notification that would have been required to accompany the order
if the order had been served on the person in accordance with
section 30,
is available for collection by the person at the place referred to in
subsection (1)(a) (during the ordinary business hours applicable to that
place) on the next business day following the day on which the order was
communicated to the person.
Division
3—Enforcement and evidentiary provisions
32—Offence
to contravene or fail to comply with public safety order
(1) A person who contravenes or fails to comply with a public safety order
is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(2) A person does not commit an offence against this section in respect of
an act or omission unless the person knew that the act or omission constituted a
contravention of, or failure to comply with, the order or was reckless as to
that fact.
(3) If a public safety order prohibits a person from entering or being
within a specified area, it is a defence to a prosecution for an offence against
this section to prove that the defendant had a reasonable excuse for entering or
being within the specified area.
33—Power to search
premises and vehicles
(1) A police officer may search—
(a) premises specified in a public safety order; or
(b) premises in which an event specified in a public safety order is being
held; or
(c) premises situated within an area specified in a public safety
order,
if the officer suspects on reasonable grounds that a person to whom the
public safety order relates is within the premises.
(2) A police officer may stop and search a vehicle, and anything in the
vehicle, if the officer suspects on reasonable grounds that—
(a) a person within the vehicle is a person to whom a public safety order
relates; and
(b) the vehicle is approaching, is in, or has recently left, any premises,
event or area specified in the public safety order.
(3) A police officer may detain a vehicle for so long as is reasonably
necessary to conduct a search under this section.
(4) A police officer may detain a person who is in a vehicle stopped under
this section for as long as is reasonably necessary to conduct a search under
this section (and that action does not, by itself, constitute an arrest of the
person).
(5) A person must not, without reasonable excuse, fail or refuse to comply
with a requirement made by a police officer for the purposes of this
section.
Maximum penalty: Imprisonment for 5 years.
In any legal proceedings, an apparently genuine document purporting to be a
public safety order is, in the absence of proof to the contrary, proof of the
order and its terms.
(1) A person who associates, on not less than 6 occasions during a period
of 12 months, with a person who is—
(a) a member of a declared organisation; or
(b) the subject of a control order,
is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(2) A person does not commit an offence against subsection (1)
unless, on each occasion on which it is alleged that the person associated with
another, the person knew that the other was—
(a) a member of a declared organisation; or
(b) a person the subject of a control order,
or was reckless as to that fact.
(3) A person who—
(a) has a criminal conviction (against the law of this State or another
jurisdiction) of a kind prescribed by regulation; and
(b) associates, on not less than 6 occasions during a period of
12 months, with another person who has such a criminal
conviction,
is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(4) A person does not commit an offence against subsection (3)
unless, on each occasion on which it is alleged that the person associated with
another, the person knew that the other had the relevant criminal conviction or
was reckless as to that fact.
(5) A person may be guilty of an offence against subsection (1) or
(3) in respect of associations with the same person or with different
people.
(6) The following forms of associations will be disregarded for the
purposes of this section unless the prosecution proves that the association was
not reasonable in the circumstances:
(a) associations between close family members;
(b) associations occurring in the course of a lawful occupation, business
or profession;
(c) associations occurring at a course of training or education of a
prescribed kind between persons enrolled in the course;
(d) associations occurring at a rehabilitation, counselling or therapy
session of a prescribed kind;
(e) associations occurring in lawful custody or in the course of complying
with a court order;
(f) associations of a prescribed kind.
(7) Without derogating from subsection (6) but subject to
subsection (8), a court hearing a charge of an offence against this section
may determine that an association will be disregarded for the purposes of this
section if the defendant proves that he or she had a reasonable excuse for the
association.
(8) In proceedings for an offence against this section,
subsection (7) does not apply to an association if, at the time of the
association, the defendant—
(a) was a member of a declared organisation; or
(b) was a person the subject of a control order; or
(c) had a criminal conviction (against the law of this State or another
jurisdiction) of a kind prescribed for the purposes of
subsection (3).
(9) For the avoidance of doubt, in proceedings for an offence against this
section, it is not necessary for the prosecution to prove that the defendant
associated with another person for any particular purpose or that the
association would have led to the commission of any offence.
(10) If a police officer has reasonable cause to suspect that 2 people are
or have been associating with each other and that at least 1 of those people
is—
(a) a member of a declared organisation; or
(b) the subject of a control order; or
(c) a person who has a criminal conviction referred to in
subsection (3),
the police officer may require 1 or both of those people to state all or
any of their personal details.
(11) For the purposes of this section—
(a) a person may associate with another person by any means
including communicating with that person by letter, telephone or facsimile or by
email or other electronic means; and
(b) a person is a close family member of another person
if—
(i) 1 is a spouse or domestic partner of the other; or
(ii) 1 is a parent, step-parent or grandparent of the other; or
(iii) 1 is a child, step-child or grandchild of the other; or
(iv) 1 is a guardian or carer of the other; or
(v) 1 is a brother, sister, step-brother or step-sister of the
other.
(12) In this section—
domestic partner means a person who is a domestic partner
within the meaning of the Family Relationships Act 1975, whether
declared as such under that Act or not;
spouse—a person is the spouse of another if they are
legally married.
36—Provision of
personal details
(1) If a police officer has reasonable cause to suspect that a personal
detail as stated in response to a requirement under this Act is false, the
officer may require the person making the statement to produce evidence of the
correctness of the personal detail as stated.
(2) A person who—
(a) refuses or fails, without reasonable excuse, to comply
with—
(i) a requirement under this Act to state his or her personal details;
or
(ii) a requirement under subsection (1); or
(b) in response to such a requirement—
(i) states a personal detail that is false; or
(ii) produces false evidence of a personal detail,
is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(3) A police officer who has required a person to state all or any of the
person's personal details under this Act is required to comply with a request to
identify himself or herself, by—
(a) producing his or her police identification; or
(b) stating orally or in writing his or her surname, rank and
identification number.
Part
6—Reviews and expiry of Act
37—Annual
review and report as to exercise of powers
(1) The Attorney-General must, before 1 July in each year (other than the
calendar year in which this section comes into operation), appoint a retired
judicial officer to conduct a review to determine whether powers under this Act
were exercised in an appropriate manner, having regard to the objects of this
Act, during the period of 12 months preceding that 1 July.
(2) The Attorney-General and the Commissioner must ensure that a person
appointed to conduct a review is provided with such information as he or she may
require for the purpose of conducting the review.
(3) A person conducting a review must maintain the confidentiality of
information provided to the person that is classified by the Commissioner as
criminal intelligence.
(4) A report on a review must be presented to the Attorney-General on or
before 30 September in each year.
(5) The Attorney-General must, within 12 sitting days after receipt of a
report under this section, cause copies of the report to be laid before each
House of Parliament.
(6) In this section—
judicial officer means a person appointed as a judge of the
Supreme Court or the District Court or a person appointed as judge of another
State or Territory or of the Commonwealth.
(1) The Attorney-General must, as soon as practicable after the fifth
anniversary of the commencement of this section, conduct a review of the
operation and effectiveness of this Act.
(2) The Attorney-General, or any person conducting the review on behalf of
the Attorney-General, must maintain the confidentiality of information provided
to the Attorney-General or other person that is classified by the Commissioner
as criminal intelligence.
(3) The Attorney-General must prepare a report based on the review and
must, within 12 sitting days after the report is prepared, cause copies of
the report to be laid before each House of Parliament.
This Act will expire 10 years after the date on which this section
comes into operation.
No civil or criminal liability attaches to—
(a) the Attorney-General, the Commissioner, a police officer or other
person exercising powers and functions under this Act; or
(b) the Crown,
in respect of an act or omission in good faith in the exercise or
discharge, or purported exercise or discharge, of a power, function or duty
conferred or imposed by or under this Act.
41—Protection
from proceedings
(1) Except as otherwise provided in this Act, no proceeding for judicial
review or for a declaration, injunction, writ, order or other remedy may be
brought to challenge or question—
(a) a decision, determination, declaration or order under this Act or
purportedly under this Act; or
(b) proceedings or procedures under this Act or purportedly under this
Act; or
(c) an act or omission made in the exercise, or purported exercise, of
powers or functions under this Act; or
(d) an act, omission, matter or thing incidental or relating to the
operation of this Act.
(2) The validity and legality of a declaration under Part 2 cannot be
challenged or questioned in any proceedings.
(3) The validity and legality of a control order or a public safety order
cannot be challenged or questioned in proceedings for an offence against this
Act.
42—Prosecution of
offence as a summary offence
(1) An indictable offence against this Act may be charged on complaint and
be prosecuted and dealt with by the Magistrates Court as a summary offence but,
if the Court determines that a person found guilty of such an offence should be
sentenced to a term of imprisonment exceeding 2 years, the Court must commit the
person to the District Court for sentence.
(2) For the avoidance of doubt, a person who is convicted of an offence
that has been prosecuted and dealt with as a summary offence in accordance with
this section is, despite that fact, taken to have been convicted of an
indictable offence for the purposes of any Act or law.
The Governor may make such regulations as are contemplated by, or necessary
or expedient for the purposes of, this Act.
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Bail
Act 1985
2—Amendment of
section 10A—Presumption against bail in certain cases
Section 10A(2)—delete subsection (2) and substitute:
(2) In this section—
prescribed applicant means—
(a) an applicant taken into custody in relation to any of the following
offences if committed, or allegedly committed, by the applicant in the course of
attempting to escape pursuit by a police officer or attempting to entice a
police officer to engage in a pursuit:
(i) an offence against section 13 of the Criminal Law
Consolidation Act 1935 in which the victim's death was caused by the
applicant's use of a motor vehicle;
(ii) an offence against section 19A of the Criminal Law
Consolidation Act 1935;
(iii) an offence against section 29 of the Criminal Law
Consolidation Act 1935 if the act or omission constituting the offence
was done or made by the applicant in the course of the applicant's use of a
motor vehicle; or
(b) an applicant taken into custody in relation to an offence against
section 17 where there is alleged to have been a contravention of, or
failure to comply with, a condition of a bail agreement imposed under
section 11(2)(a)(ii); or
(c) an applicant taken into custody in relation to an offence of
contravening or failing to comply with a control order or public safety order
issued under the Serious and Organised Crime (Control) Act 2007;
or
(d) an applicant taken into custody in relation to an offence against any
of the following provisions of the Criminal Law Consolidation
Act 1935:
(i) section 172;
(ii) section 248;
(iii) section 250.
Part 3—Amendment of Criminal Law Consolidation
Act 1935
Section 248—delete this section and substitute:
248—Threats or reprisals relating to persons
involved in criminal investigations or judicial proceedings
(1) A person who—
(a) stalks another person; or
(b) causes or procures, or threatens or attempts to cause or procure, any
physical injury to a person or property,
with the intention of inducing a person who is or may be involved in a
criminal investigation or judicial proceedings, to act or not to act in a way
that might influence the outcome of the investigation or proceedings, is guilty
of an offence.
Penalty: Imprisonment for 7 years.
(2) A person who—
(a) stalks another person; or
(b) causes or procures, or threatens or attempts to cause or procure, any
physical injury to a person or property,
on account of anything said or done by a person involved in a criminal
investigation or judicial proceedings in good faith in the conduct of the
investigation or proceedings, is guilty of an offence.
Penalty: Imprisonment for 7 years.
(3) For the purposes of this section, a person stalks
another if the person does any of the following, in a manner that could
reasonably be expected to arouse the other person's apprehension or
fear:
(a) follows the other person; or
(b) loiters outside the place of residence of the other person or some
other place frequented by the other person; or
(c) enters or interferes with property in the possession of the other
person; or
(d) gives or sends offensive material to the other person, or leaves
offensive material where it will be found by, given to or brought to the
attention of the other person; or
(e) publishes or transmits offensive material by means of the internet or
some other form of electronic communication in such a way that the offensive
material will be found by, or brought to the attention of, the other person;
or
(f) communicates with the other person, or to others about the other
person, by way of mail, telephone (including associated technology), facsimile
transmission or the internet or some other form of electronic communication;
or
(g) keeps the other person under surveillance; or
(h) acts in any other way.
(4) For the purposes of this section—
(a) a person is involved in a criminal investigation if the
person is involved in such an investigation as a witness, victim or legal
practitioner or is otherwise assisting police with their inquiries;
and
(b) a person is involved in judicial proceedings if the
person is—
(i) a judicial officer or other officer at judicial proceedings;
or
(ii) involved in such proceedings as a witness, juror or legal
practitioner,
whether the proceedings are in progress or are proceedings that are to be
or may be instituted at a later time.
Section 250—delete this section and substitute:
250—Threats or reprisals against public
officers
(1) A person who—
(a) stalks another person; or
(b) causes or procures, or threatens or attempts to cause or procure, any
physical injury to a person or property,
with the intention of influencing the manner in which a public officer
discharges or performs his or her official duties or functions, is guilty of an
offence.
Penalty: Imprisonment for 7 years.
(2) A person who—
(a) stalks another person; or
(b) causes or procures, or threatens or attempts to cause or procure, any
physical injury to a person or property,
on account of anything said or done by a public officer in good faith in
the discharge or performance or purported discharge or performance of his or her
official duties or functions, is guilty of an offence.
Penalty: Imprisonment for 7 years.
(3) For the purposes of this section, a person stalks
another if the person does any of the following, in a manner that could
reasonably be expected to arouse the other person's apprehension or
fear:
(a) follows the other person; or
(b) loiters outside the place of residence of the other person or some
other place frequented by the other person; or
(c) enters or interferes with property in the possession of the other
person; or
(d) gives or sends offensive material to the other person, or leaves
offensive material where it will be found by, given to or brought to the
attention of the other person; or
(e) publishes or transmits offensive material by means of the internet or
some other form of electronic communication in such a way that the offensive
material will be found by, or brought to the attention of, the other person;
or
(f) communicates with the other person, or to others about the other
person, by way of mail, telephone (including associated technology), facsimile
transmission or the internet or some other form of electronic communication;
or
(g) keeps the other person under surveillance; or
(h) acts in any other way.
Part 4—Amendment of Freedom of Information
Act 1991
5—Amendment of
Schedule 1—Exempt documents
Schedule 1, clause 4—after subclause (3) insert:
(3a) A document is an exempt document if it has been created by South
Australia Police and contains information classified by the Commissioner of
Police, in accordance with the provisions of any other Act, as criminal
intelligence.
Part 5—Amendment of Summary Offences
Act 1953
Section 13—delete the section
7—Amendment of
section 74BB—Fortification removal order
Section 74BB(1)(b)—after subparagraph (ii) insert:
; or
(iii) the premises—
(A) are owned by a declared organisation or a member of a declared
organisation; or
(B) are occupied or habitually used as a place of resort by members of a
declared organisation,