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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) (Miscellaneous)
Amendment Bill 2012
A BILL FOR
An Act to amend the Serious
and Organised Crime (Control) Act 2008; and to make related
amendments to the Summary
Offences Act 1953.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Serious and
Organised Crime (Control) Act 2008
4Amendment of
section 3—Interpretation
5Insertion of section
5A
5ACriminal
intelligence
6Substitution of Parts 2 and
3
Part 2—Declared
organisations
8Eligible
Judges
9Commissioner may apply for
declaration
10Publication of notice of
application
11Eligible Judge may make
declaration
12Notice of
declaration
13Duration of
declaration
14Revocation of
declaration
15Submissions at
hearings
16Reasons to
be published in Gazette
17Making of subsequent
declaration
18Practice and
procedure
19Regulations
20Change of name etc
21Evidentiary
Part 3—Control
orders
22Court may make control
order
22AInterim control
orders
22BDuration of
control order or interim control order
22CVariation or
revocation
22DRight to object if interim
order made ex parte
22EConsequential and ancillary
orders
22FAppeal
22GEvidentiary
22HAutomatic revocation of
order
22IOffence to
contravene or fail to comply with control order
7Amendment of
section 29—Disclosure of reasons and criminal intelligence
8Amendment of section 30—Service and
notification
9Insertion of section
33A
33APrinciples of equity
and good conscience
10Insertion of sections 34A and
34B
34APermitting premises
to be habitually used as place of resort by members of declared
organisation
34BRecruiting person to become member of declared
organisation
11Substitution of Part 6
Division 1—Preliminary
37Interpretation
38Service
Division 2—Registration of
corresponding declarations
39Application may be made by
Commissioner
39ARegistration of corresponding
declaration
39BNotice of
registration
39CCommencement and effect of registered corresponding
declaration
Division 3—Cancellation
of registration
39DRevocation in jurisdiction where corresponding
declaration originally made
39ECancellation of registration of corresponding
declaration by Court
39FCancellation of registration of corresponding
declaration at request of Commissioner
39GNotice of cancellation or expiry of registration of
corresponding declaration
39HEffect of cancellation or expiry of registration of
corresponding declaration
Division 4—Registration of
corresponding control orders
39IApplication may be made by
Commissioner
39JRegistration of corresponding
control order
39KReferral of application to Court for adaptation or
modification
39LExpiry of
registration
39MNotice of
registration
39NCommencement and effect of registered corresponding
control order
Division 5—Variation and
cancellation of registered corresponding control order
39OVariation or revocation in jurisdiction where
corresponding control order originally made
39PCancellation of registration of corresponding
control order by Court
39QCancellation of registration of corresponding
control order at request of Commissioner
39RRegistration of corresponding control order
cancelled automatically in certain
circumstances
39SProof of making or variation of corresponding
control order not required on proceedings for breach
12Insertion of sections 39T to
39Z
39TGeneral provisions on
service of applications, orders and other
documents
39URepresentation of unincorporated
group
39VApplication
of Act to children
39WCosts
39XJoint and several
liability
39YUse of
evidence or information for purposes of Act
39ZPresumption as to membership
13Repeal of section 41
14Amendment of
section 43—Regulations
Schedule 1—Related amendments and
transitional provisions
Part 1—Related
amendments to Summary Offences Act 1953
1Amendment of
heading
2Insertion of section
6AA
6AADisclosure of
criminal intelligence
3Amendment of section
74BA—Interpretation
Part 2—Transitional
provisions
section 6
section 6
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Serious and Organised Crime (Control)
(Miscellaneous) Amendment Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Serious and Organised Crime (Control)
Act 2008
4—Amendment
of section 3—Interpretation
(1) Section 3, definition of control order—delete
"an order of the Court under section 14" and substitute:
a control order made by the Court under Part 3 (but does not include
an interim control order)
(2) Section 3, definition of Court—delete the
definition and substitute:
conviction means a finding of guilt by a court, or the
acceptance of a plea of guilty by a court, whether or not a conviction is
recorded;
corresponding control order means an order made under a
provision of a law of another State or Territory that is prescribed by
regulation for the purposes of this definition;
corresponding declaration means a declaration or order made
under a provision of a law of another State or Territory that is prescribed by
regulation for the purposes of this definition;
Court—
(a) in Part 2, Part 3 and Part 6, means the
Supreme Court;
(b) in Part 4, means the Magistrates Court;
(3) Section 3, definition of declared
organisation—delete "the Attorney-General under section 10"
and substitute:
an eligible Judge under Part 2 or a registered corresponding
declaration that is in force under Part 6
(4) Section 3, definition of defendant—delete the
definition and substitute:
eligible Judge—see section 8;
exercise a function includes perform a duty;
function includes a power, authority or duty;
interim control order means an interim control order made by
the Court under section 22A;
(5) Section 3, definition of member,
(b)(iii)—delete subparagraph (iii)
(6) Section 3—after the definition of personal
details insert:
proceedings includes any proceedings or hearing before an
eligible Judge;
(7) Section 3—after the definition of public safety
order insert:
respondent—
(a) in Part 3, means the person to whom a control order or interim
control order, or application for such an order, relates; and
(b) in Part 6, means the organisation the subject of a corresponding
declaration or the person the subject of a corresponding control order (as the
case may be);
(8) Section 3, definition of serious criminal
offences—after paragraph (b) insert:
or
(c) offences under the law of another jurisdiction consisting of conduct
that would, if engaged in this State, be offences of a kind specified in
paragraph (a) or (b).
After section 5 insert:
5A—Criminal intelligence
(1) In any proceedings
under this Act before a court, the court—
(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 so
classified by the Commissioner by way of affidavit of a police officer of or
above the rank of superintendent.
(2) In any proceedings under this Act before an eligible Judge, the
eligible Judge—
(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 or hear submissions about the
information, or otherwise deal with the information, in private in the absence
of the parties to the proceedings and their representatives; and
(b) may receive information so classified or submissions relating to
information so classified by the Commissioner by way of statutory declaration of
a police officer of or above the rank of superintendent.
(3) The duties imposed on a court by
subsection (1) in
relation to proceedings under this Act apply to any court dealing (whether on an
appeal under this, or another, Act or otherwise) with information properly
classified under this Act as criminal intelligence or with the question of
whether information has been properly classified under this Act by the
Commissioner as criminal intelligence.
6—Substitution
of Parts 2 and 3
Parts 2 and 3—delete the Parts and substitute:
Part 2—Declared organisations
8—Eligible Judges
(1) For the purposes of this Act, an eligible Judge is a
Judge in relation to whom a consent under
subsection (2)
and an appointment under
subsection (3)
are in force.
(2) A Judge of the
Court may, by instrument in writing, consent to being the subject of an
appointment by the Attorney-General under
subsection (3).
(3) The
Attorney-General may, by instrument in writing, appoint Judges in relation to
whom consents are in force under
subsection (2)
to be eligible Judges.
(4) An eligible Judge has, in relation to the exercise of a function
conferred on an eligible Judge by this Act, the same protection, privileges and
immunities as a Judge of the Court has in relation to proceedings in the
Court.
(5) A Judge who has
given consent under
subsection (2)
may, by instrument in writing, revoke the consent.
(6) An appointment of an eligible Judge under
subsection (3)
cannot be revoked by the Attorney-General but is revoked if—
(a) the eligible Judge revokes his or her consent in accordance with
subsection (5)
or ceases to be a Judge; or
(b) the Chief Justice notifies the Attorney-General that the Judge should
not continue to be an eligible Judge.
(7) To avoid doubt, the selection of an eligible Judge to exercise a
particular function conferred on eligible Judges is not to be made by the
Attorney-General or other Minister of the Crown, and the exercise of that
particular function is not subject to the control and direction of the
Attorney-General or other Minister of the Crown.
9—Commissioner may apply for
declaration
(1) The Commissioner may apply to an eligible Judge for a declaration
under this Part in relation to an organisation.
(2) The application must—
(a) be in writing; and
(b) identify the particular organisation in respect of which the
declaration is sought; and
(c) describe the nature of the organisation and any of its distinguishing
characteristics; and
(d) set out the grounds on which the declaration is sought; and
(e) set out the information supporting the grounds on which the
declaration is sought; and
(f) set out details of any previous application for a declaration in
respect of the organisation and the outcome of that application; and
(g) be supported by at least 1 statutory declaration from a police officer
of or above the rank of superintendent, 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 identifying the organisation.
(4) The application must be lodged with the holder of an office prescribed
by the regulations and that person must, as soon as practicable, refer the
application to an eligible Judge.
(5) On receiving an
application that complies with this section, the eligible Judge must determine
the date, time and place of the hearing of the application and notify the
Commissioner of the matters referred to in
section 10(f).
(6) Subject to
subsection (7),
the Commissioner must make a copy of an application under this section, and any
statutory declaration supporting the application, available for inspection
by—
(a) any person who satisfies the Commissioner that he or she is a
representative of the organisation; and
(b) any person who is alleged in a statutory declaration supporting the
application to be a member or former member of the organisation; and
(c) any person who satisfies the Commissioner that he or she is a member
or former member of the organisation or other person who may be directly
affected (whether or not adversely) by the outcome of the application.
(7) Nothing in
subsection (6)
authorises or requires the disclosure of information properly classified by the
Commissioner as criminal intelligence.
10—Publication of notice of
application
If the Commissioner makes an application under
section 9 in relation
to an organisation, the Commissioner must as soon as practicable (but no later
than 3 days) after being given a notification by the eligible Judge under
section 9(5)
publish a notice in the Gazette and a newspaper circulating generally
throughout the State—
(a) specifying that an application has been made for a declaration under
this Part in respect of the organisation; and
(b) specifying that there may be serious consequences for members of the
organisation and other persons if the declaration is made; and
(c) inviting the organisation to make submissions to the eligible Judge in
relation to the application; and
(d) inviting members
and former members of the organisation and other persons who may be directly
affected (whether or not adversely) by the outcome of the application to provide
written submissions in relation to the application; and
(e) specifying the manner in which the organisation or a person referred
to in
paragraph (d) may
inspect or apply to inspect a copy of the application and any statutory
declaration supporting the application; and
(i) the date, time and place of the hearing, as determined by the eligible
Judge; and
(ii) the requirements of the eligible Judge in relation to the provision
of written submissions.
11—Eligible Judge may make
declaration
(1) The eligible Judge
may make a declaration on an application made under this Part in relation to an
organisation if the eligible Judge 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 in this
State.
(2) In considering whether or not to make a declaration, the eligible
Judge may have regard to the following:
(a) information suggesting that a link exists between the organisation and
serious criminal activity;
(b) any convictions recorded against—
(i) current or former members of the organisation; or
(ii) persons who associate, or have associated, with members of the
organisation;
(c) 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 the involvement resulted in
convictions;
(d) information suggesting that members of an interstate or overseas
chapter or branch of the organisation (however described) associate for the
purpose of organising, planning, facilitating, supporting or engaging in serious
criminal activity;
(e) anything else the eligible Judge considers relevant.
(3) A declaration may be made whether or not any of the persons who are
entitled to make or provide submissions in relation to the application take
advantage of that opportunity.
(4) Members of an organisation may associate for the
purposes of this section in any manner including merely by being members of the
organisation.
(5) The eligible Judge may, for the purposes of making the declaration, be
satisfied that members of the organisation associate for the purpose of
organising, planning, facilitating, supporting or engaging in serious criminal
activity—
(a) whether all the members associate for that purpose or only some of the
members; and
(b) whether members associate for that purpose in relation to the same
serious criminal activity or different serious criminal activity; and
(c) whether or not the members also associate for other
purposes.
12—Notice of declaration
(1) As soon as
practicable after the making of a declaration under this Part, the Commissioner
must publish notice of the declaration in the Gazette and in a newspaper
circulating generally throughout the State.
(2) The declaration is of no effect until notice of it is published under
subsection (1).
13—Duration of declaration
A declaration made under this Part remains in force unless and until it is
revoked in accordance with this Part.
14—Revocation of declaration
(1) An eligible
Judge who has made a declaration under this Part in relation to an organisation
may, at any time, revoke the declaration—
(a) on application by
the Commissioner; or
(i) the organisation; or
(ii) a person who made or provided submissions in relation to the
application for the declaration; or
(iii) with the permission of the eligible Judge—any other member or
former member of the organisation or person directly affected (whether or not
adversely) by the declaration.
(2) An application may not be made under
subsection (1)(b)
if—
(a) an application has been made in relation to the organisation under
that paragraph (whether by the same or a different applicant) within the
preceding period of 12 months; or
(b) an application has been made in relation to the organisation under
that paragraph (whether by the same or a different applicant) and that
application has not been finally determined.
(3) An application under
subsection (1)
must—
(a) be in writing; and
(b) set out the grounds on which revocation is sought; and
(c) set out the information supporting the grounds on which revocation is
sought; and
(d) be supported by at least 1 statutory declaration from the applicant
verifying the contents of the application.
(4) The application must be lodged with the holder of an office prescribed
by the regulations and that person must, as soon as practicable, refer the
application to an eligible Judge.
(5) On receiving an
application that complies with this section, the eligible Judge must determine
the date, time and place of the hearing of the application and notify the
applicant accordingly.
(6) If an application is made under
subsection (1)(a),
the Commissioner must as soon as practicable (but no later than 3 days)
after being given a notification by the eligible Judge under
subsection (5)
publish a notice in the Gazette and a newspaper circulating generally
throughout the State—
(a) specifying that an application has been made for revocation of a
declaration under this Part in respect of the organisation; and
(b) inviting the organisation to make submissions to the eligible Judge in
relation to the application; and
(c) inviting
members and former members of the organisation and other persons who may be
directly affected (whether or not adversely) by the outcome of the application
to provide written submissions in relation to the application; and
(d) specifying the manner in which the organisation or a person referred
to in
paragraph (c)
may inspect or apply to inspect a copy of the application; and
(e) specifying—
(i) the date, time and place of the hearing, as determined by the eligible
Judge; and
(ii) the requirements of the eligible Judge in relation to the provision
of written submissions.
(7) If an application is made under
subsection (1)(b),
the applicant must as soon as practicable after being given a notification by
the eligible Judge under
subsection (5)—
(a) notify the Commissioner of the making of the application and of the
date, time and place of the hearing, as determined by the eligible Judge;
and
(b) serve a copy of the application and any supporting statutory
declaration on the Commissioner.
(8) A declaration may be revoked on an application under
subsection (1)(b)
only if the eligible Judge is satisfied that, as at the time at which the
application for revocation is made and heard, there would not be grounds for the
making of a declaration in relation to the organisation.
(9) The Commissioner must, as soon as practicable after a declaration is
revoked—
(a) make reasonable efforts to give notice of the revocation to any person
who made or provided a submission in relation to the making of the declaration;
and
(b) publish notice of the revocation in the Gazette and in
a newspaper circulating generally throughout the State.
(10) If the eligible Judge who made a declaration under this Part has
died, has ceased to be an eligible Judge or is absent, a power exercisable by
that eligible Judge under this section may be exercised by any other eligible
Judge.
15—Submissions at hearings
(1) At the hearing of any application under this Part, the Commissioner
and the organisation to which the application relates are entitled to make oral
submissions, personally or through a legal representative, to the eligible Judge
and, with the permission of the eligible Judge, to provide, in accordance with
any requirements of the eligible Judge, written submissions.
(2) At the hearing
of any application under this Part, a member or former member of the
organisation to which the application relates and any other person who may be
directly affected (whether or not adversely) by the outcome of the application
may—
(a) provide, in accordance with any requirements of the eligible Judge,
written submissions; and
(b) with the permission of the eligible Judge—make oral submissions,
personally or through a legal representative, to the eligible Judge.
(3) A person
referred to in
subsection (2)
who does not wish to appear at the hearing may, at any time before the date
fixed for the hearing, apply to the eligible Judge to make a protected
submission.
(4) An application to
make a protected submission must—
(a) be in writing and
be lodged with the holder of an office prescribed by the regulations;
and
(b) set out the grounds on which the person believes that his or her
proposed submission would be a protected submission within the meaning of this
section; and
(c) include any other prescribed information.
(5) If the eligible Judge is satisfied that a person who has applied to
make a protected submission under this section is eligible to make such a
submission, the eligible Judge must notify the person, and the Commissioner, of
that fact and of the arrangements that are to be made for the making of the
submission.
(6) The eligible
Judge is to take steps to maintain the confidentiality of a protected
submission, including steps—
(a) to ensure that other persons referred to in
subsection (2)
(or their legal representatives) are not made aware of—
(i) the fact that the submission was made; or
(ii) any details contained in, or relating to, the protected submission;
and
(b) to hear the submission in private in the absence of other persons
referred to in
subsection (2)
(or their legal representatives).
(7) The
Commissioner, or a legal representative of the Commissioner, is entitled to be
present when a protected submission is made.
(8) The holder of the office referred to in
subsection (4)(a),
the Commissioner and any other person who, in the exercise of official functions
or powers, knows of the making of, hears or otherwise has access to a protected
submission must not disclose—
(a) the fact that the submission was made; or
(b) any details contained in, or relating to, the protected
submission,
(except to the Attorney-General, the eligible Judge, a court or a person to
whom the eligible Judge or the person making the protected submission authorises
its disclosure or as may otherwise be required in the course of exercising such
official functions or powers).
Maximum penalty: Imprisonment for 2 years.
(9) A statutory declaration may be provided to the eligible Judge (in
accordance with any requirements of the eligible Judge)
verifying—
(a) any matter referred to in an oral or written submission made to the
eligible Judge under this section; or
(b) any grounds on which a person believes that his or her proposed
submission would be a protected submission.
(10) In this section—
protected submission means an oral or written submission made
by a person who has reasonable grounds to believe that he or she may be
subjected to action (whether directly or indirectly) comprising or involving
injury, damage, loss, intimidation or harassment in reprisal for making the
submission.
16—Reasons to be published in
Gazette
(1) An eligible
Judge must, as soon as practicable after making a declaration or decision under
this Part—
(a) make available (in such manner as the eligible Judge thinks fit)
reasons for the declaration or decision to the Commissioner, the organisation to
whom the declaration or decision relates and other persons who made or provided
submissions in relation to the declaration or decision; and
(b) ensure that written reasons for the declaration or decision are
published in the Gazette.
(2) Nothing in this section authorises or requires the disclosure of
information by an eligible Judge where an obligation to maintain the
confidentiality of the information otherwise exists (whether under
section 5A,
section 15(6) or
some other Act or law).
17—Making of subsequent
declaration
For the avoidance of doubt, nothing prevents the making of a declaration in
relation to an organisation that has been the subject of a previous declaration
which has been revoked.
18—Practice and procedure
(1) The practices and procedures of an eligible Judge are to be as
determined by the eligible Judge.
(2) The rules of evidence do not apply to proceedings before an eligible
Judge under this Act.
19—Regulations
The regulations may—
(a) make provision in relation to the manner in which records of
proceedings before an eligible Judge are to be dealt with,
including—
(i) the custody of such records; and
(ii) access to such records; and
(b) prescribe, and provide for the payment of, fees in respect of
proceedings before an eligible Judge or any step in such proceedings or access
to records of such proceedings.
20—Change of name etc
(1) A change in the name or membership of a declared organisation does not
affect the organisation's status as a declared organisation.
(2) If the members of a declared organisation substantially re-form
themselves into another organisation, that organisation is taken to form a part
of the declared organisation (whether or not the organisation named in the
declaration is dissolved).
21—Evidentiary
In any proceedings before a court, an apparently genuine document
purporting to be signed by the Commissioner and to certify that a specified
organisation was, on a specified date, a declared organisation constitutes, in
the absence of proof to the contrary, proof of the matter so
certified.
Part 3—Control orders
22—Court may make control
order
(1) The Commissioner may apply to the Court for the making of a control
order relating to a person (the respondent).
(2) The Court may, on
application by the Commissioner, make a control order relating to the respondent
if the Court is satisfied that—
(a) the respondent is a member of a declared organisation; or
(i) has been a member of an organisation which, at the time of the
application, is a declared organisation; or
(ii) engages, or has engaged, in serious criminal activity,
and associates or has associated with a member of a declared organisation;
or
(c) the respondent
engages, or has engaged, in serious criminal activity and associates or has
associated 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) In proceedings under this section—
(a) the Commissioner and the respondent are parties to the proceedings;
but
(b) the Court may, if satisfied that the application has been served on
the respondent, hear and determine the proceedings whether or not the respondent
chooses to participate in the hearing.
(4) If the Commissioner requests the making of an interim control order
without notice to the respondent under
section 22A, the Court may
order that service of the application (and any material to be served with the
application) on the respondent under this section be delayed until the Court has
determined that request.
(a) may prohibit the
respondent from any 1 or more of the following:
(i) associating with a specified person or persons of a specified
class;
(ii) holding an authorisation to carry on a prescribed activity while the
control order remains in force;
(iii) being present at, or being in the vicinity of, a specified place or
premises or a place or premises of a specified class;
(iv) possessing a specified article or weapon, or articles or weapons of a
specified class;
(v) carrying on his or her person more than a specified amount of
cash;
(vi) using for communication purposes, or being in possession of, a
telephone, mobile phone, computer or other communication device except as may be
specified;
(vii) engaging in other conduct of a specified kind that the Court
considers could be relevant to the commission of serious criminal offences;
and
(b) if the respondent
is a member of a declared organisation, must prohibit the respondent
from—
(i) associating with
any other person who is a member of a declared organisation; 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) If the Court
prohibits a respondent from holding an authorisation to carry on a prescribed
activity—
(a) any such authorisation held by the respondent is revoked from the date
on which the control order takes effect or a later date specified by the Court;
and
(b) if the revocation is to take effect on a later date—the Court
may impose any further prohibition it thinks fit on the respondent in relation
to the conduct of the activity to which the authorisation relates until the
revocation takes effect; and
(c) the revocation is effected despite any other Act or any law, award or
industrial or other agreement affecting the employment of the respondent, and
neither the Crown nor the authority that issues an authorisation incurs any
liability because of the revocation.
(7) A condition
referred to in
subsection (5)(b)(i)
applies in relation to association with any person who is a member of a declared
organisation at the time of the association—
(a) whether the person is a member of a declared organisation when the
order is made or becomes a member at a later time; and
(b) whether the declared organisation is a declared organisation when the
order is made or is declared at a later time.
(8) In determining an application for a control order, the Court may have
regard to the following:
(a) whether the respondent's behaviour, or history of behaviour, suggests
that there is a risk that the respondent will engage in serious criminal
activity;
(b) the extent to which the order might assist in preventing the
respondent from engaging in serious criminal activity;
(c) the prior criminal record (if any) of the respondent and any person
specified in the application as a person with whom the respondent associates or
has associated;
(d) any legitimate reason the respondent 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.
(9) 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 fax or by email or other electronic means.
authorisation includes the licensing, registration, approval,
certification or any other form of authorisation required by or under
legislation for the carrying on of an occupation or activity;
occupation means an occupation, trade, profession or calling
of any kind that may only be carried on by a person holding an
authorisation;
prescribed activity means an occupation or activity of a kind
prescribed by regulation for the purposes of this definition.
22A—Interim control orders
(1) The Court may, on an application under
section 22, make an
interim control order if the Court is satisfied that, on the basis of the
application and any evidence tendered by the Commissioner, the Court could make
a control order under
section 22 in relation
to the respondent.
(a) may be made without notice to the respondent; and
(b) may include any prohibition that may be included in a control order
under
section 22(5)(a)
and, if the Court is satisfied that the respondent is a member of a declared
organisation, must include prohibitions of a kind referred to in
section 22(5)(b).
(3)
Section 22(6)
and
(7) apply in relation to
an interim control order as if it were a control order.
22B—Duration of control order or interim control
order
(1) A control order
or interim control order takes effect—
(a) if the respondent or a legal representative of the respondent is
present when the order is made—on the making of the order; or
(b) otherwise—when
the Commissioner serves the order on the respondent.
(2) Service under
subsection (1)(b)
must be by personal service.
(3) Subject to
section 22H, a control
order remains in force—
(a) for the period of time (if any) specified in the order; or
(b) until the order is revoked in accordance with
section 22C,
(whichever occurs first).
(4) Subject to
sections 22D and
22H, an interim control order
remains in force for the period specified in the order and any further period
specified by the Court.
22C—Variation or revocation
(1) The Court may make
an order varying a control order (a variation order) or revoking a
control order (a revocation order) on application—
(2) An application may only be made under
subsection (1)(b)
with the permission of the Court and permission is only to be granted if the
Court is satisfied, on the basis of the application and any evidence tendered by
the respondent, there has been a substantial change in the relevant
circumstances since the control order was made or last varied.
(3) An application made under
subsection (1)(b)
must be supported by oral evidence given on oath.
(4) Subject to this section, in proceedings for the variation or
revocation of a control order—
(a) the Commissioner and the respondent are parties to the proceedings;
but
(b) in the case of an application under
subsection (1)(a),
the Court may, if satisfied that the application has been served on the
respondent, hear and determine the proceedings whether or not the respondent
chooses to participate in the hearing.
(5) The Court may, on an application under
subsection (1)(a),
make an interim variation order if the Court is satisfied that, on the basis of
the application and any further information provided or evidence tendered by the
Commissioner, it would be appropriate for the Court to vary the control order
made in relation to the respondent.
(6) An interim
variation order—
(a) may be made without notice to the respondent; and
(b) remains in force until further order of the Court.
(7) In determining an application under this section the Court may have
regard to the same matters that the Court may have regard to in determining an
application for a control order.
(8) If a revocation order is made, or a variation order is made on
application under
subsection (1)(b),
the revocation or variation order has effect immediately on the making of the
order or at such later time as may be specified by the Court in making the
order.
(9) If a variation
order or interim variation order is made on application under
subsection (1)(a),
the order has effect—
(a) if the respondent or a legal representative of the respondent is
present when the variation order or interim variation order is made—on the
making of the order; or
(b) otherwise—when
the Commissioner serves the order on the respondent.
(10) Service under
subsection (9)(b)
must be by personal service.
22D—Right to object if interim order made ex
parte
(1) This section only applies if an interim control order or interim
variation order has been made without notice to the respondent.
(2) The respondent may, within 14 days of service of the interim
control order or interim variation order or such longer period as the Court may
allow, lodge a notice of objection with the Court.
(3) A copy of the notice of objection must be served by the respondent on
the Commissioner by registered post at least 21 days before the day
appointed for hearing of the notice.
(4) The Court must, when determining a notice of objection, consider
whether, on the basis of the notice and any further information provided or
evidence tendered by the Commissioner, the Court could make a control order
under
section 22 in
relation to the respondent or a variation order under
section 22C in relation to
the control order.
(5) The Court may,
on hearing a notice of objection, confirm, vary or revoke the interim control
order or interim variation order.
22E—Consequential and ancillary
orders
(1) The Court may, on
making a control order or variation order or an interim control order or
variation order, make any consequential or ancillary orders it thinks fit,
including, in a case where the order prohibits the possession of an article or
weapon or an article or weapon of a specified class, orders—
(a) providing for the surrender or confiscation of the article or weapon
or such an article or weapon; and
(b) if the circumstances of the case so require, authorising a police
officer—
(i) to enter and search and, if necessary, use reasonable force to break
into or open—
(A) premises or a vehicle in which the article or weapon, or such an
article or weapon is suspected to be; or
(B) part of, or anything in or on, premises or a vehicle in which the
article or weapon, or such an article or weapon is suspected to be;
and
(ii) to take possession of the article or weapon, or such an article or
weapon.
(2) An article or weapon surrendered or confiscated under
subsection (1) is
forfeited to the Crown and may be sold or disposed of as the Minister thinks fit
unless the Court orders that the article or weapon is to be returned to the
respondent when the control order or interim control order lapses or is
revoked.
22F—Appeal
The commencement of an appeal under the Supreme
Court Act 1935 against an order made under this Part does not, of
itself, affect the operation of the order to which the appeal relates.
22G—Evidentiary
(1) Subject to this
section, in any proceedings under this Part —
(a) transcripts of evidence or documents tendered in evidence, or material
otherwise relied on by a court, in proceedings in which a person has been
convicted of an offence; and
(b) evidence or documents relating to the factual basis on which a person
was convicted and sentenced for an offence,
will be admissible, and the Court may draw any conclusions of fact that it
considers proper from the evidence, document or other material.
(2) Subject to this
section, in any proceedings under this Part, an apparently genuine document
purporting to be a police record of a person's antecedents or criminal history
will be admissible without further proof as evidence of the facts referred to in
the document, or to be inferred from the document.
(3) An affidavit of a police officer of or above the rank of
superintendent will be admissible in evidence for the purpose of proving that
evidence, a document or other material is of a kind referred to in
subsection (1) or
(2).
(4) Evidence, a document or other material will not be admitted in
evidence under
subsection (1) or
(2) if the Court is of
the opinion—
(a) that the person by whom, or at whose direction, the evidence, document
or material was prepared can and should be called by the party tendering the
evidence, document or material to give evidence of the matters contained in the
evidence, document or material; or
(b) that the evidentiary weight of the evidence, document or material is
slight and is outweighed by the prejudice that might result to any of the
parties from the admission of the evidence, document or material in evidence;
or
(c) that it would be otherwise contrary to the interests of justice to
admit the evidence, document or material in evidence.
(5) In any proceedings under this Part, an apparently genuine document
purporting to be remarks made by a court in—
(a) sentencing a person for an offence; or
(b) giving reasons for upholding or dismissing an appeal—
(i) against a sentence for an offence; or
(ii) against a conviction for an offence where the conviction is
upheld,
as to the facts which the court accepts or finds to have been established
in the proceedings for the offence will be admissible without further proof, if
relevant to an issue in the proceedings, as evidence of those facts.
(6) In determining whether to admit any material in evidence under this
section, the Court may receive evidence by affidavit of any matter pertaining to
the admission of that material.
(7) For the purpose of determining the evidentiary weight, if any, of
material admitted in evidence under this section, consideration must be given to
the source from which the material was produced, the safeguards (if any) that
have been taken to ensure its accuracy, and any other relevant
matters.
(8) Nothing in this section limits the material that might be admissible
in proceedings under this Part.
22H—Automatic revocation of
order
Without derogating from any power of the Court under this Part, if a
control order or interim control order is made in relation to a person in
reliance on the person’s membership of a particular declared organisation
or the person’s association with a member of a particular declared
organisation, the order is revoked when the declaration for the declared
organisation is no longer in force.
22I—Offence to contravene or fail to comply with
control order
(1) A person who contravenes or fails to comply with a control order or
interim 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.
7—Amendment
of section 29—Disclosure of reasons and criminal
intelligence
(1) Section 29(1)—delete "(but is required to provide such
grounds or reasons to a person conducting a review under Part 6 if that
person so requests)"
(2) Section 29(2)—delete "a person conducting a review under
Part 6,"
(3) Section 29(3) and (4)—delete subsections (3)
and (4)
8—Amendment
of section 30—Service and notification
(1) Section 30(1)—delete "Subject to subsection (5), if"
and substitute:
If
(2) Section 30(1)—delete "personally" and substitute:
by personal service
(3) Section 30(4) and (5)—delete subsections (4)
and (5)
After section 33 insert:
33A—Principles of equity and good
conscience
In proceedings under this Part, other than for an offence, a
court—
(a) is not bound by the rules of evidence but may inform itself as the
court 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.
10—Insertion
of sections 34A and 34B
Before section 35 insert:
34A—Permitting premises to be habitually used as
place of resort by members of declared organisation
(1) A person who is
the owner, occupier or lessee of any premises must not knowingly permit those
premises to be habitually used as a place of resort by members of a declared
organisation.
Maximum penalty: Imprisonment for 2 years.
(2) A person must
not be knowingly concerned in the management of any premises habitually used as
a place of resort by members of a declared organisation.
Maximum penalty: Imprisonment for 2 years.
(3) In proceedings for an offence against
subsection (1),
a person who—
(a) is the owner, occupier or lessee of any premises habitually used as a
place of resort by members of a declared organisation; and
(b) is a member of the declared organisation,
is presumed, in the absence of proof to the contrary, to knowingly permit
those premises to be habitually used as a place of resort by members of the
declared organisation.
(4) In proceedings for an offence against
subsection (2),
a person who—
(a) is concerned in the management of any premises habitually used as a
place of resort by members of a declared organisation; and
(b) is a member of the declared organisation,
is presumed, in the absence of proof to the contrary, to be knowingly
concerned in the management of those premises.
(5) In this section—
owner, in relation to premises, includes—
(a) a person entitled to receive rent paid in respect of the premises;
and
(b) a person to whom the rent in respect of the premises is
paid.
34B—Recruiting person to become member of declared
organisation
(1) A person commits an
offence if the person is a member of a declared organisation or is subject to a
control order or interim control order and the person—
(a) recruits, or
attempts to recruit, anyone to become a member of a declared organisation;
or
(b) encourages anyone
to associate with another person who is a member of a declared
organisation.
Maximum penalty: Imprisonment for 5 years.
(2) A person does not commit an offence against
subsection (1)
unless the person knew—
(a) in the case of an offence against
subsection (1)(a)—that
the organisation was a declared organisation; or
(b) in the case of an offence against
subsection (1)(b)—that
the other person was a member of a declared organisation,
or was reckless as to that fact.
Part 6—delete the Part and substitute:
Part 6—Corresponding orders
Division 1—Preliminary
37—Interpretation
In this Part—
registrar means—
(a) in relation to a corresponding declaration—the holder of an
office prescribed by the regulations; and
(b) in relation to a corresponding control order—the registrar
within the meaning of the Supreme
Court Act 1935.
38—Service
(1) An application, order or other document that is to be served on a
respondent under this Part may, if personal service is not practicable or the
respondent is an unincorporated group, be served by public notice or in any
other manner directed by the Court.
(2) For the purposes of this section, an application, order or other
document will be taken to have been served on a respondent by public notice on
publication of a notice in a newspaper circulating generally throughout the
State setting out the following:
(a) the general nature of the application, order or other
document;
(b) details (to the extent practicable) of the respondent who is being
served with the application, order or other document;
(c) the manner in which a copy of the application, order or other document
(including any accompanying affidavit) may be obtained or read by the
respondent.
Division 2—Registration of corresponding
declarations
39—Application may be made by
Commissioner
(1) The Commissioner may apply to the registrar for the registration of a
corresponding declaration.
(2) An application for registration—
(a) must be made in the prescribed manner; and
(b) must be accompanied by a copy of the corresponding declaration to be
registered.
(3) An application for registration of a corresponding declaration does
not need to be served on the respondent.
(4) An application for registration of a corresponding declaration cannot
be made under this Division if any of the following apply to the
declaration:
(a) the declaration is no longer in force;
(b) the law of the jurisdiction in which the declaration was made
specifies requirements as to publication of the declaration or service of the
declaration that have not been complied with (or are not, in accordance with
that law, taken to have been complied with);
(c) the law of the jurisdiction in which the declaration was made
specifies a period within which the respondent may appeal against the
declaration, and that period has not expired;
(d) the determination of an application by the respondent for permission
to appeal against the declaration (whether made before or after any appeal
period has expired) is pending;
(e) the determination of an appeal by the respondent against the
declaration is pending;
(f) the application is of a kind, or is made in circumstances, prescribed
by the regulations for the purposes of this provision.
39A—Registration of corresponding
declaration
(1) On an application
under this Division for the registration of a corresponding declaration, the
registrar must register the declaration if satisfied that the application has
been properly made under this Division.
(2) On registering a
corresponding declaration under this Division, the registrar must specify the
date on which the registration under this Act will expire (being the date on
which the corresponding declaration would cease to be in force in the
jurisdiction in which it was made if it were not sooner revoked).
(3) However,
subsection (2) does
not apply if, under the law of the jurisdiction in which the corresponding
declaration was made, the corresponding declaration remains in force for an
indefinite period, in which case—
(a) on registering the declaration, the registrar is to specify that the
registration is for an indefinite period; and
(b) the registration of the corresponding declaration under this Act does
not expire.
39B—Notice of registration
(1) Not later than 2 working days after registering a corresponding
declaration, the registrar must give the Commissioner a certificate of the
registration with a copy of the registered corresponding declaration
attached.
(2) As soon as
practicable after receiving a copy of the registered corresponding declaration,
the Commissioner must publish notice of the registration of the declaration in
the Gazette and in a newspaper circulating generally throughout the
State.
39C—Commencement and effect of registered
corresponding declaration
(1) A registered corresponding declaration—
(a) comes into force in this State on the day after the day on which
notice of the registration of the declaration is published in the Gazette in
accordance with
section 39B(2);
and
(b) remains in force in this State until 1 of the following
occurs:
(i) the registration of the declaration expires in accordance with
section 39A(2);
(ii) the registration of the declaration is cancelled under
Division 3.
(2) If a registered corresponding declaration has come into force under
this section, the registered corresponding declaration has effect in this State
as if it were a declaration made under Part 2 (but the provisions of
Part 2, other than sections 20 and 21, do not apply in relation
to the registered corresponding declaration).
Division 3—Cancellation of
registration
39D—Revocation in jurisdiction where corresponding
declaration originally made
(1) This section applies to a registered corresponding declaration
if—
(a) the declaration is revoked in the jurisdiction in which it was made;
and
(b) the registrar receives notice of that revocation.
(2) On receiving notice of the revocation of the registered corresponding
declaration, the registrar must—
(a) cancel the registration of the declaration without delay (and the
cancellation takes effect immediately); and
(b) give the Commissioner written notice of that cancellation.
39E—Cancellation of registration of corresponding
declaration by Court
(1) The Court may, on application by the respondent, cancel the
registration of a corresponding declaration if satisfied that the declaration
should not have been registered in accordance with
section 39A(1).
(2) The Commissioner is a party to an application under this
section.
(3) If registration of a corresponding declaration is cancelled under this
section, the corresponding declaration is taken never to have been
registered.
(4) Nothing in this section authorises the Court to reconsider the merits
of the corresponding declaration.
39F—Cancellation of registration of corresponding
declaration at request of Commissioner
(1) The Commissioner may, at any time while a corresponding declaration is
registered under this Part, apply to the registrar to cancel the registration of
the declaration.
(2) On receiving an application under this section, the registrar
must—
(a) cancel the registration of the declaration without delay (and the
cancellation takes effect immediately); and
(b) give the Commissioner written notice of that cancellation.
39G—Notice of cancellation or expiry of
registration of corresponding declaration
As soon as practicable after the registration of a corresponding
declaration is cancelled under this Division or expires, the Commissioner must
publish notice of the cancellation or expiry in the Gazette and in a newspaper
circulating generally throughout the State.
39H—Effect of cancellation or expiry of
registration of corresponding declaration
The expiry or cancellation of the registration of a corresponding
declaration under this Division has effect in this State in the same way as the
revocation of a declaration made under Part 2.
Division 4—Registration of corresponding
control orders
39I—Application may be made by
Commissioner
(1) The Commissioner may apply to the registrar for the registration of a
corresponding control order.
(2) An application for registration—
(a) must be made in the prescribed manner; and
(b) must be accompanied by a copy of the order to be registered;
and
(c) must be accompanied by any affidavit the Commissioner intends to rely
on in relation to the application; and
(d) must state whether the Commissioner considers that the order needs to
be adapted or modified for its effective operation in this State and, if so, the
details of the adaptation or modification that the Commissioner considers
necessary.
(3) An application for the registration of a corresponding control order
does not need to be served on the respondent.
(4) An application for the registration of a corresponding control order
cannot be made under this Division if—
(a) the respondent is subject to a control order or interim control order
under Part 3; or
(b) any of the following apply to the corresponding control
order:
(i) the order is no longer in force;
(ii) the order has not been served, or is not taken to have been served,
on the respondent under the law of the jurisdiction where the order was
made;
(iii) the law of the jurisdiction in which the order was made specifies a
period within which the respondent may appeal against the order, and that period
has not expired;
(iv) the determination of an application by the respondent for permission
to appeal against the order (whether made before or after any appeal period has
expired) is pending;
(v) the determination of an appeal by the respondent against the order is
pending; or
(c) the application is of a kind, or is made in circumstances, prescribed
by the regulations for the purposes of this provision.
39J—Registration of corresponding control
order
(1) On an application
under this Division for the registration of a corresponding control order, the
registrar must register the order if satisfied—
(a) that the application has been properly made under this Division;
and
(b) that the order does not need to be adapted or modified for its
effective operation in this State.
(2) If the registrar
considers that the order needs to be adapted or modified for its effective
operation in this State, the registrar must refer the application to the
Court.
39K—Referral of application to Court for adaptation
or modification
(1) This section applies if an application for the registration of a
corresponding control order is referred to the Court under
section 39J(2).
(2) The Court may
vary the corresponding control order for the purposes of its registration by
adapting or modifying it in a way the Court considers necessary or desirable for
its effective operation in the State.
(3) Nothing in
subsection (2)
authorises the Court to reconsider the merits of the corresponding control
order.
(4) If this section applies—
(a) the Commissioner and the respondent are parties to the proceedings
before the Court relating to the application; but
(b) the Court may, if satisfied that the application has been served on
the parties, hear and determine the proceedings whether or not the Commissioner
or the respondent choose to participate in the hearing.
(5) Before varying a corresponding control order under this section, the
Court must be satisfied that the application for registration has been properly
made under this Division.
(6) The registrar must register the corresponding control order as varied
by the Court.
39L—Expiry of registration
(1) On registering
a corresponding control order under this Division, the registrar must specify
the date on which the registration under this Act will expire (being the date on
which the corresponding control order would cease to be in force in the
jurisdiction in which it was made if it were not sooner revoked).
(2) However,
subsection (1)
does not apply if, under the law of the jurisdiction in which the corresponding
control order was made, the corresponding control order remains in force for an
indefinite period, in which case—
(a) on registering the order, the registrar is to specify that the
registration is for an indefinite period; and
(b) the registration of the corresponding control order under this Act
does not expire.
39M—Notice of registration
(1) Not later than 2 working days after registering a corresponding
control order, the registrar must give the Commissioner a certificate of the
registration with a copy of the registered corresponding control order
attached.
(2) As soon as practicable after receiving a copy of the registered
corresponding control order, the Commissioner must—
(a) serve a copy of the order personally on the respondent; and
(b) publish notice of the registration of the order in the
Gazette.
39N—Commencement and effect of registered
corresponding control order
(1) A registered
corresponding control order—
(a) comes into force in this State when the respondent is served
personally with a copy of the order; and
(b) remains in force in
this State until 1 of the following occurs:
(i) the registration of the order expires under
section 39L;
(ii) the registration of the order is cancelled under
Division 5.
(2) If a registered corresponding control order has come into force under
this section, the registered corresponding control order has effect in this
State as if it were a control order made under Part 3 (but the provisions
of Part 3, other than the provision making it an offence to contravene or
fail to comply with a control order (section 22I), do not apply in relation
to the registered corresponding control order).
Division 5—Variation and cancellation of
registered corresponding control order
39O—Variation or revocation in jurisdiction where
corresponding control order originally made
(1) If a corresponding control order is varied by a court in the
jurisdiction in which the order was made—
(a) the variations to the order may be registered under this Part in the
same way as the corresponding control order is registered, whether the
variations were made before or after the registration of the corresponding
control order; and
(b) the provisions of this Part apply accordingly with all necessary
modifications.
(2)
Subsection (3)
applies to a registered corresponding control order if—
(a) the order is revoked by a court in the jurisdiction in which the order
was made; and
(b) the registrar receives notice of that revocation from an officer of
that court or from the Commissioner.
(3) On receiving notice
of the revocation of the registered corresponding control order, the registrar
must—
(a) cancel the registration of the order without delay (and the
cancellation takes effect immediately); and
(b) give the Commissioner written notice of that cancellation.
(4) As soon as practicable after receiving notice of the cancellation of
the registration of a corresponding control order, the Commissioner must serve a
copy of the notice of cancellation personally on the respondent.
39P—Cancellation of registration of corresponding
control order by Court
(1) The Court may, on application by the respondent, cancel the
registration of a corresponding control order if satisfied that the control
order should not have been registered in accordance with
section 39J(1).
(2) The Commissioner is a party to an application under this
section.
(3) If registration of a corresponding control order is cancelled under
this section, the corresponding control order is taken never to have been
registered.
(4) Nothing in this section authorises the Court to reconsider the merits
of the corresponding control order.
39Q—Cancellation of registration of corresponding
control order at request of Commissioner
(1) The Commissioner may, at any time while a corresponding control order
is registered under this Part, apply to the registrar to cancel the registration
of the order.
(2) On receiving an application under this section, the registrar
must—
(a) cancel the registration of the order without delay (and the
cancellation takes effect immediately); and
(b) give the Commissioner written notice of that cancellation.
(3) As soon as practicable after receiving notice of the cancellation of
the registration of a corresponding control order, the Commissioner must serve a
copy of the notice of cancellation personally on the respondent.
39R—Registration of corresponding control order
cancelled automatically in certain circumstances
The registration of a corresponding control order under this Part is
immediately cancelled if—
(a) the person to whom the order relates becomes subject to a control
order or interim control order made under Part 3; or
(b) the order was made in reliance on the person to whom the order relates
—
(i) being a member of a particular organisation that is subject to a
corresponding declaration; or
(ii) associating with a member of a particular organisation that is
subject to a corresponding declaration,
and the corresponding declaration is no longer in force.
39S—Proof of making or variation of corresponding
control order not required on proceedings for breach
In proceedings for a breach, committed in this State, of a registered
corresponding control order, no proof is required of—
(a) the making of the corresponding control order or of any variation of
it that operates in this State under this Part; or
(b) the service of the order or variation on the person to whom the order
relates.
12—Insertion
of sections 39T to 39Z
Before section 40 insert:
39T—General provisions on service of applications,
orders and other documents
(1) If a police
officer has reasonable cause to suspect that a person is someone on whom an
application, order or other document is required to be served by personal
service under this Act, 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).
(2) If a person has been required to remain at a particular place in
accordance with
subsection (1)(b),
personal service of a photocopy, faxed copy or printed electronic copy of the
application, order or other document will be taken to be personal service of the
application, order or other document on the person.
(3) If the person
serving an application, order or other document which is required, under this
Act, to be served on a person by personal service—
(a) has reasonable cause to believe that the person 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,
the application, order or other document may be served on the person
by—
(c) leaving it for the person 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 court dealing with any proceedings under this Act may make such
orders as to service of an application, order or other document relating to the
proceedings as it thinks fit.
39U—Representation of unincorporated
group
(1) An organisation
that is an unincorporated group may, in proceedings under this Act, be
represented in the proceedings by a person or persons who satisfy the court or
eligible Judge dealing with the proceedings that he or she is, or they are,
appropriate representatives of the group or a part of the group.
(2) A person referred to in
subsection (1) may
be represented by legal counsel in the proceedings.
39V—Application of Act to
children
(1) Subject to this section, this Act applies in relation to a child in
the same way as it applies to an adult.
(2) A control order may not be made in relation to a child who is under
16 years of age.
(3) If a control order relating to a child who is of or over 16 years
of age is made, varied or revoked, the Commissioner must, as soon as reasonably
practicable, give written notice of the making of the order or of the variation
or revocation (as the case may be) to—
(a) a parent or guardian of the child, if the Commissioner is able to find
a parent or guardian of the child after making reasonable attempts;
and
(b) any other prescribed person or person of a prescribed class.
(4) In this section—
child means a person under 18 years of age.
39W—Costs
(1) Each party to proceedings on an application under this Act must bear
the party’s own costs for the proceedings.
(2) However, a court or eligible Judge may award costs against a party who
has—
(a) made an application the court considers frivolous or vexatious;
or
(b) by an unreasonable act or omission, caused another party to incur
costs in connection with the proceedings.
(3) If proceedings are delayed through the neglect or incompetence of a
representative, a court or eligible Judge may, at the conclusion of those
proceedings—
(a) disallow the whole or part of the costs as between the representative
and his or her client (and, where appropriate, order the representative to repay
costs already paid); or
(b) order the representative to indemnify his or her client or any other
party to the proceedings for costs resulting from the delay; or
(c) order the representative to pay to—
(i) in the case of proceedings before a court—the registrar of the
court; or
(ii) in the case of proceedings before an eligible Judge—the holder
of an office prescribed by the regulations,
for the credit of the Consolidated Account an amount fixed by the court or
eligible Judge as compensation for time wasted.
(4) A person who refuses or fails to comply with an order of an eligible
Judge under this section is guilty of an offence.
Maximum penalty: Imprisonment for 6 months.
39X—Joint and several
liability
If a member of a declared organisation is found to be liable, in any civil
proceedings, for damage or loss resulting from conduct engaged in by the member
for the benefit of the declared organisation or at the direction of, or in
association with, the declared organisation, the organisation and each member of
the organisation is jointly and severally liable for the damage or
loss.
39Y—Use of evidence or information for purposes of
Act
(1) Despite any other Act or law, evidence or information obtained by the
lawful exercise of powers under an Act or law (whether before or after the
commencement of this section) and evidence or information obtained incidentally
to such an exercise of powers—
(a) may be used by law enforcement and prosecution authorities for the
purposes of this Act; and
(b) is not inadmissible in proceedings before a court under this Act
merely because the evidence or information was not obtained for the purposes of
this Act.
(2) Despite any other Act or law, information (whether obtained before or
after the commencement of this section) properly classified by the Commissioner
as criminal intelligence —
(a) may be used by law enforcement and prosecution authorities for the
purposes of this Act; and
(b) may be admitted in evidence or otherwise used in proceedings under
this Act,
despite the fact that the person who provided the information to the
Commissioner has not consented to such use or has refused consent to such
use.
(3) No civil or criminal liability lies against a person in respect of any
use of evidence or information permitted by this section.
39Z—Presumption as to
membership
For the purposes of any proceedings under this Act, a person is presumed,
in the absence of proof to the contrary, to be a member of an organisation at a
particular time if the person is, at that time, displaying (whether on an
article of clothing, as a tattoo or otherwise) the insignia of that
organisation.
Section 41—delete the section
14—Amendment
of section 43—Regulations
Section 43—after its present contents (now to be designated as
subsection (1)) insert:
(2) Regulations under this Act—
(a) may make different provision according to the matters or circumstances
to which they are expressed to apply;
(b) may provide that a matter or thing in respect of which regulations may
be made is to be determined according to the discretion of the Attorney-General,
the Commissioner or any other person or body prescribed by the
regulations.
Schedule 1—Related
amendments and transitional provisions
Part 1—Related amendments to Summary
Offences Act 1953
Heading to Part 2—delete the heading and substitute:
Part 2—Offences with respect to police
operations
After section 6 insert:
6AA—Disclosure of criminal
intelligence
(1) A person who, without lawful excuse, discloses information that has
been properly classified by the Commissioner as criminal intelligence under any
Act is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
(2) It is a defence to prosecution for an offence against this section to
prove that the defendant did not know, and did not have reason to believe, that
the information was classified by the Commissioner as criminal intelligence
under an Act.
3—Amendment
of section 74BA—Interpretation
(1) Section 74BA—after the definition of Court
insert:
declared organisation has the same meaning as in the Serious
and Organised Crime (Control) Act 2008;
(2) Section 74BA—after the definition of fortification
removal order insert:
member, in relation to a declared organisation, has the same
meaning as in the
Serious
and Organised Crime (Control) Act 2008;
Part 2—Transitional
provisions
4—Declarations
made before commencement of
section 6
A declaration made under section 10 of the Serious
and Organised Crime (Control) Act 2008 as in force before the
commencement of
section 6 is of no
force or effect.
5—Control
orders made before commencement of
section 6
A control order made under section 14(2)(b) of the Serious
and Organised Crime (Control) Act 2008 (the Act) as
in force before the commencement of
section 6
continues as if it were a control order made under Part 3 of the Act, as in
force after the commencement of
section 6.