South Australian Numbered Acts South Australian Numbered ActsAfter section 65 insert:
Part 14A—Consorting prohibition notices
66—Interpretation
(1) In this Part—
"close personal relationship" has the same meaning as in Part 3 of the Family Relationships Act 1975 ;
"consorting prohibition notice" means a notice issued by a senior police officer under section 66A(1);
"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;
"offence of violence" means an offence where the offender—
(a) uses a weapon, or threatens to use a weapon, against another; or
(b) inflicts serious harm on another, or threatens to inflict serious harm on another,
for the purpose of committing the offence, or escaping from the scene of the offence;
"prescribed offence" means—
(a) an offence against Part 5 Division 2 of the Controlled Substances Act 1984 or a corresponding offence against a previous enactment; or
(b) an indictable offence against the Firearms Act 1977 ; or
(c) an indictable offence of violence; or
(d) a serious and organised crime offence; or
(e) an offence involving extortion or money laundering; or
(f) any attempt to commit, or assault with intent to commit, any of the foregoing offences; or
(g) an offence against the law of another jurisdiction that would, if committed in this State, constitute any of the foregoing offences;
"recipient"—see section 66A(1);
"senior police officer" means a police officer of or above the rank of superintendent;
"spouse"—a person is the spouse of another if they are legally married.
(2) For the purposes of this Part—
(a) a person may "consort" with another person by any means including by letter, telephone or fax 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 former spouse of the other or is, or has been, in a close personal relationship with the other; or
(ii) 1 is a parent or grandparent of the other (whether by blood or by marriage); or
(iii) 1 is a brother or sister of the other (whether by blood or by marriage); or
(iv) 1 is a guardian or carer of the other.
66A—Senior police officer may issue consorting prohibition notice
(1) A senior police officer may issue a notice prohibiting a person (the "recipient") from consorting with a specified person or specified persons if the officer is satisfied that—
(a) —
(i) the recipient is subject to a control order under the Serious and Organised Crime (Control) Act 2008 ; or
(ii) the specified person or each specified person—
(A) has, within the preceding period of 3 years, been found guilty of 1 or more prescribed offences; or
(B) is reasonably suspected of having committed 1 or more prescribed offences within the preceding period of 3 years; and
(b) the recipient has been habitually consorting with the specified person or specified persons; and
(c) the issuing of the notice is appropriate in the circumstances.
(2) However, a consorting prohibition notice—
(a) does not prohibit associations between close family members; and
(b) does not prohibit associations occurring between persons—
(i) for genuine political purposes; or
(ii) while the persons are in lawful custody; or
(iii) while the persons are acting in compliance with a court order; or
(iv) while the persons are attending a rehabilitation, counselling or therapy session of a prescribed kind; and
(c) may specify other circumstances in which the notice does not apply.
(3) A consorting prohibition notice issued by a police officer on the basis that he or she is satisfied that the recipient is subject to a control order will lapse—
(a) if—
(i) an application to vary the control order is made under the Serious and Organised Crime (Control) Act 2008 within the period ending 28 days after the day on which the consorting prohibition notice was issued; and
(ii) the application is for the control order to be varied so that the person subject to the order is prohibited from associating with each person specified in the consorting prohibition notice as a person with whom he or she is prohibited from consorting,
when the application is determined; or
(b) if no such application is made—at the end of that 28 day period.
66B—Form of notice
(1) A consorting prohibition notice—
(a) subject to subsection (2), must specify the grounds on which the notice has been issued; and
(b) must contain a statement advising the recipient of the effect of section 66A(2)(a) and (b); and
(c) must contain a statement advising the recipient that he or she is entitled to apply for a review of the notice in accordance with this Part.
(2) A statement of the grounds on which a notice has been issued must not contain information that is classified by the Commissioner as criminal intelligence.
66C—Service of notice
(1) Subject to the making of an order under subsection (3), a consorting prohibition notice must be served on the recipient personally and is not binding on the recipient until it has been so served.
(2) If a police officer has reason to believe that a person is subject to a consorting prohibition notice that has not been served on the person, the officer may—
(a) require the person to remain at a particular place for—
(i) so long as may be necessary for the notice to be served on the person; or
(ii) 2 hours,
whichever is the lesser; and
(b) if the person refuses or fails to comply with the requirement or the officer has reasonable grounds to believe that the requirement will not be complied with, arrest and detain the person in custody (without warrant) for the period referred to in paragraph (a).
(3) If a police officer satisfies the Court that all reasonable efforts have been made to effect personal service of a notice on a recipient in accordance with this section but that those efforts have failed, the Court may make such orders as it thinks fit in relation to substituted service (and the notice is not binding on the recipient until it has been so served).
66D—Application for review
(1) Subject to subsection (3), a recipient on whom a consorting prohibition notice has been served may, within 4 weeks after service of the notice, lodge an application with the Court for review of the notice.
(2) The Court may, on a review, consider the following matters:
(a) whether sufficient grounds exist to satisfy the Court that the notice was properly issued in accordance with section 66A(1);
(b) whether any person specified in the notice is a close family member of the recipient or there are otherwise good reasons why a particular person should not be so specified;
(c) whether the notice should specify particular circumstances in which it does not apply.
(3) The grounds of the review must be stated fully and in detail in the application.
(4) A copy of the application for review must be served by the recipient on the Commissioner personally or by registered post at least 7 days before the day appointed for conducting the review (and the Commissioner is a party to proceedings on the application).
(5) The Court may, on a review, confirm, vary or revoke the notice.
66E—Variation or revocation of consorting prohibition notice
(1) If, at any time, the Court is satisfied that, since a consorting prohibition notice was made or last varied, there has been a substantial change in the circumstances taken into account in accordance with section 66A(1)(c), the Court may grant the recipient permission to apply to the Court under this section.
(2) The Court may, on an application under this section, vary or revoke a consorting prohibition notice.
(3) A copy of the application for variation or revocation must be served by the recipient on the Commissioner personally or by registered post at least 7 days before the day appointed for hearing the application (and the Commissioner is a party to proceedings on the application).
66F—Appeal
(1) The Commissioner or the recipient may appeal to the Supreme Court against a decision of the Court under this Part.
(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.
66G—Revocation of notice by Commissioner
The Commissioner may, at any time, revoke a consorting prohibition notice by notice in writing to the recipient.
66H—Applications by or on behalf of child
An application to a court that could otherwise be made by a person under this Part may, if the person is a child, be made—
(a) by the child with the permission of the court, if the child has attained the age of 14 years; or
(b) on behalf of the child—
(i) by a parent or guardian of the child; or
(ii) by a person with whom the child normally or regularly resides.
66I—Evidence etc
(1) In any proceedings under this Part, other than for an offence, the Court—
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(2) A fact to be proved in proceedings under this Part, other than for an offence, is sufficiently proved if proved on the balance of probabilities.
66J—Criminal intelligence
(1) In any proceedings under this Part, a court—
(a) must, on the application of the Commissioner, take steps to maintain the confidentiality of information 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 so classified by the Commissioner by way of affidavit of a senior police officer.
(2) The Commissioner 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.
66K—Offence to contravene or fail to comply with notice
(1) A person who contravenes or fails to comply with a consorting prohibition notice is guilty of an offence.
Maximum penalty: Imprisonment for 2 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 notice or was reckless as to that fact.
(3) In proceedings for an offence against this section, an apparently genuine document purporting to be signed by the Commissioner and to certify that at a specified time a consorting prohibition notice applied to, or was in force against, a specified person must, in the absence of proof to the contrary, be regarded as proof of the matter so certified.