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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal Organisations Control Bill 2011
CONTENTS
Part 1 -- Preliminary
1. Short title 3
2. Commencement 3
3. Terms used 3
4. Purposes of this Act 8
5. Act binds Crown 9
Part 2 -- Declared criminal
organisations
Division 1 -- Applications for declaration
6. Purpose of declaration 10
7. Application for declaration 10
8. Publication of notice of application 11
Division 2 -- Determination of applications
9. Hearing of application 12
10. Persons who may attend and make submissions 13
11. Protected submissions 14
12. Designated authority can make declaration despite
non-appearance of respondent or others 14
13. Designated authority may make declaration 14
14. Reasons for decision 16
15. Notice of declaration 17
16. Duration of declaration 17
17. Declaration not affected by change in name or
reorganisation 18
Division 3 -- Renewal, revocation and expiry of
declarations
18. Renewal of declaration 18
230--3 page i
Criminal Organisations Control Bill 2011
Contents
19. Application for revocation of declaration 19
20. Consideration of application for revocation may be
dismissed 20
21. Determination of application for revocation 21
22. Reasons for decision 22
23. When revocation of declaration takes effect 22
24. Notice of revocation or expiry of declaration 23
25. Effect of expiry or revocation of declaration 23
Division 4 -- Designated authorities
26. Designation of judges or retired judges to
determine applications 23
27. Termination of designation 24
28. Designated authorities not subject to control by
Executive 25
29. Any designated authority may act 25
30. Protection and immunity 25
31. Nature and functions of designated authority 25
32. Record of proceedings 25
Part 3 -- Control orders
Division 1 -- Overview
33. Overview 27
34. Application of provisions protecting criminal
intelligence information 28
Division 2 -- Interim control orders
Subdivision 1 -- Applications for interim control
orders
35. Application for interim control order 28
36. Form of application 28
37. Application for hearing without notice or on notice 29
Subdivision 2 -- Determination of applications
38. Making of interim control order 30
39. Explanation of interim control order 30
40. Court to fix hearing date for application for control
order 31
41. Notice of making of interim control order 32
42. Content of notice 32
43. Powers to request particulars and detain for
purposes of service 33
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Criminal Organisations Control Bill 2011
Contents
44. Alternative means of service 34
45. Commencement and duration of interim control
order 35
Subdivision 3 -- Revocation of interim control
orders made without notice
46. Application for revocation of interim control order
made without notice 36
47. Determination of application to revoke interim
control order 37
48. Revocation of interim control order halts
proceedings for control order 38
Subdivision 4 -- Variation of interim control orders
49. Application for variation of interim control order 38
50. Determination of application for variation 39
Division 3 -- Control orders
Subdivision 1 -- How proceedings for control order
begun
51. How proceedings for control order begun 40
Subdivision 2 -- Applications for control orders
52. Application for control order 40
53. Form of application 41
54. Filing and service of application 41
Subdivision 3 -- Notice of objection to making of
control order
55. Notice of objection 42
Subdivision 4 -- Making control orders
56. Determination of application for control order 43
57. Circumstances in which control order may be
made 44
58. Conditions of control order 46
59. Consequential or ancillary orders 47
60. Form of control order 47
61. Explanation of control order 49
62. Commencement and duration of control order 49
63. Successive control orders permitted 50
Subdivision 5 -- Appeals, variations and revocations
64. Appeal against making or refusal of control order 51
65. Appeal does not stay order unless Court of Appeal
orders otherwise 51
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Criminal Organisations Control Bill 2011
Contents
66. Determination of appeal 52
67. Application to vary control order 52
68. Determination of application for variation 53
69. Explanation of variation 54
70. Application for revocation of control order 54
71. Determination of application for revocation 55
72. Notice of variation or revocation 55
Division 4 -- Orders against persons under 18
73. Orders available against 16 and 17 year olds 56
74. Notification of orders against juveniles 56
75. Personal service of orders against juveniles
required 56
76. Application of certain Acts relating to persons
under 18 not affected 57
Division 5 -- Effect of orders
Subdivision 1 -- Standard conditions
77. Standard condition: non-association with other
controlled persons 57
78. Other standard conditions 58
Subdivision 2 -- Non-standard conditions
79. Non-standard conditions 58
80. Condition prohibiting controlled person from
carrying on prescribed activity 59
81. Commissioner of Police to notify regulatory
authority of suspension of authorisation or
application 63
Subdivision 3 -- Surrender and seizure of things
82. Surrendering things that cannot be possessed under
order 64
83. Seizure of things not surrendered 65
84. Dealing with things surrendered or seized:
firearms, firearms licences and weapons 66
85. Dealing with things surrendered or seized: other
things 68
86. Other written laws providing for disposal of
surrendered or seized property not affected 70
Subdivision 4 -- Requirements to provide
identifying particulars
87. Term used: identifying particular 70
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Criminal Organisations Control Bill 2011
Contents
88. Identifying particulars may be taken under
Criminal Investigation (Identifying People)
Act 2002 70
89. Power to take identifying particulars exercisable
once only 70
90. Retention and use of identifying particulars taken 71
91. Disposal of identifying particulars taken 71
92. Power of police officers to request disclosure of
identity 72
Subdivision 5 -- Notification of order where
possession of firearms prohibited
93. Inquiries about use of, or access to, firearms 72
94. Commissioner of Police to notify order to
responsible person and co-licensee 74
Division 6 -- General
95. Orders only available against individuals 75
96. Order prohibiting entry to premises or place 75
97. Correcting minor errors in orders 75
98. Relationship with other laws 76
Part 4 -- Offences
Division 1 -- Offences by controlled persons
Subdivision 1 -- Non-association offences
99. Association between controlled persons an offence 77
100. Defences to charges under section 99 78
101. Certain associations to be disregarded for interim
control orders 78
Subdivision 2 -- Financing offence
102. Offence for controlled person to get funds to, from
or for declared criminal organisation 79
Subdivision 3 -- Other offences by controlled
persons
103. Other contravention of interim control order or
control order 79
104. Failure to disclose identity or giving false
particulars 80
105. Failure to disclose information or giving false
information about use of or access to firearms 81
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Criminal Organisations Control Bill 2011
Contents
Division 2 -- Other offences
106. Recruiting members for declared criminal
organisation an offence 81
107. Permitting premises to be habitually used as place
of resort by members of declared criminal
organisation 82
108. Offence for responsible person or co-licensee to
allow controlled person access to firearm 83
Part 5 -- Protection of criminal
intelligence information
109. Term used: criminal intelligence information 84
110. Protection of criminal intelligence information in
proceedings for declaration 84
111. Protection of criminal intelligence information in
court proceedings under this Act 86
112. Redacted copy of affidavit may be served to
protect criminal intelligence information 88
Part 6 -- Information about
declarations and orders
113. Commissioner of Police to keep register 89
114. Publication of information on register 89
115. Provision of information about declarations and
orders 90
116. Application of this Part to registered interstate
declarations and control orders 91
Part 7 -- Reciprocal recognition and
enforcement of declarations and
orders
Division 1 -- Preliminary
117. Overview of this Part 92
118. Terms used 93
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Criminal Organisations Control Bill 2011
Contents
Division 2 -- Reciprocal recognition of
declarations
Subdivision 1 -- Applications for registration of
interstate declaration
119. Application for registration of interstate
declaration 93
120. When interstate declaration cannot be registered 94
Subdivision 2 -- Registration of interstate
declaration by registrar
121. Registration of interstate declaration by registrar 94
122. Period of registration 95
Subdivision 3 -- Notice of registration
123. Notice of registration 95
Subdivision 4 -- Commencement, duration and
effect of registered interstate declaration
124. Commencement and duration of registered
interstate declaration 96
125. Effect of registration of interstate declaration 96
Subdivision 5 -- Cancellation of registration of
interstate declaration
126. Revocation in jurisdiction where interstate
declaration originally made 97
127. Cancellation of registration of interstate
declaration at request of Commissioner of Police
or CC Commissioner 97
128. Cancellation of registration of interstate
declaration on application by respondent or others 98
Subdivision 6 -- Notice of cancellation or expiry of
registration
129. Notice of cancellation or expiry of registration of
interstate declaration 98
130. Registrar to notify police commissioner and
original court of cancellation of registration 99
Subdivision 7 -- Effect of cancellation or expiry of
registration
131. Effect of cancellation or expiry of registration of
interstate declaration 99
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Criminal Organisations Control Bill 2011
Contents
Subdivision 8 -- Evidential provision
132. Proof of making of interstate declaration not
required in proceedings for offence 99
Division 3 -- Reciprocal recognition of control
orders
Subdivision 1 -- Applications for registration of
interstate control order
133. Application for registration of interstate control
order 100
134. When interstate control order cannot be registered 101
Subdivision 2 -- Registration of interstate control
order by registrar
135. Registration of interstate control order by registrar 101
Subdivision 3 -- Determination by court of
application for registration
136. Referral of application to court for adaptation or
modification 102
137. Determination of application for registration 103
Subdivision 4 -- Period of registration
138. Period of registration 104
Subdivision 5 -- Notice of registration
139. Notice of registration 104
140. Explanation of registered interstate control order 104
Subdivision 6 -- Commencement, duration and
effect of registered interstate control order
141. Commencement and duration of registered
interstate control order 105
142. Effect of registration of interstate control order 106
Subdivision 7 -- Renewal of registration of interstate
control order
143. Application for renewal of registration of interstate
control order 106
144. Registrar to renew registration of interstate control
order 107
145. Period of renewal 107
146. Notice of renewal of registration 107
147. Effect of renewal of registration of interstate
control order 108
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Criminal Organisations Control Bill 2011
Contents
Subdivision 8 -- Variation and cancellation of
registered interstate control order
148. Variation or revocation in jurisdiction where
interstate control order originally made 109
149. Variation of registered interstate control order in
this State 110
150. Procedure where registered order varied to include
firearms condition 110
151. Cancellation of registration of interstate control
order at request of Commissioner of Police 111
152. Cancellation of registration of interstate control
order on application by respondent 111
153. Registration of interstate control order cancelled if
control order made under this Act 111
154. Registrar to notify original court of cancellation of
registration 112
Subdivision 9 -- Evidential provision
155. Proof of making or variation of interstate control
order not required on proceedings for breach 112
Part 8 -- Monitoring and review
Division 1 -- Monitoring
156. Terms used 113
157. Parliamentary Commissioner to monitor exercise
of powers 113
158. Parliamentary Commissioner to report on
monitoring activities 114
159. Maintenance of confidentiality of criminal
intelligence 115
160. Jurisdiction under Parliamentary Commissioner
Act 1971 not limited 115
Division 2 -- Review of Act
161. Act to be reviewed after 5 years 115
162. Maintenance of confidentiality of criminal
intelligence 116
Part 9 -- Miscellaneous
163. Nature of proceedings under this Act 117
164. Costs in proceedings under this Act 117
165. Proof of service 117
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Criminal Organisations Control Bill 2011
Contents
166. Notification of service 118
167. Delegation by Commissioner of Police 118
168. Delegation by Corruption and Crime
Commissioner 119
169. Protection from liability for wrongdoing 119
170. Regulations 119
171. Power to make rules of court 119
Part 10 -- Amendments to other Acts
172. Bail Act 1982 amended 120
173. The Criminal Code amended 121
Chapter XXVIA -- Facilitating activities of criminal
organisations
221C. Terms used 121
221D. Term used: criminal organisation 122
221E. Participating in activities of criminal
organisation 123
221F. Instructing commission of offence for
benefit of criminal organisation 124
174. Criminal Investigation Act 2006 amended 125
69B. Searching people for things relevant to
interim control orders or control orders 125
175. Criminal Investigation (Identifying People)
Act 2002 amended 125
176. Criminal Property Confiscation Act 2000 amended 126
177. Evidence Act 1906 amended 128
178. Liquor Control Act 1988 amended 129
152NA. Relationship with Criminal Organisations
Control Act 2011 130
179. Misuse of Drugs Act 1981 amended 130
180. Prohibited Behaviour Orders Act 2010 amended 131
181. Sentencing Act 1995 amended 132
Division 2A -- Sentencing where declared criminal
organisations involved
9A. Terms used 132
9B. Application of this Division 132
9C. Principal objectives of sentencing for
offences where declared criminal
organisation involved 133
9D. Mandatory minimum sentences where
declared criminal organisation involved 133
9E. Section 9D not applicable to persons aged
under 18 135
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Criminal Organisations Control Bill 2011
Contents
9F. Further provisions relating to mandatory
minimum sentences imposed under
section 9D 135
9G. Eligibility for parole 136
124C. Orders under Criminal Organisations
Control Act 2011 137
Schedule 1A -- Relevant indictable and simple
offences for purposes of Part 2 Division 2A
Part 1 -- Relevant indictable offences
Part 2 -- Relevant simple offences
182. Young Offenders Act 1994 amended 147
Defined Terms
page xi
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Criminal Organisations Control Bill 2011
A Bill for
An Act to --
• provide for the making of declarations and control orders for the
purpose of disrupting and restricting the activities of
organisations involved in serious criminal activity, their members
and associates, and the imposition of criminal sanctions on
persons who recruit members for such organisations or finance
or support them in other ways; and
• amend The Criminal Code to create certain offences relating to
participating in the activities of a criminal organisation, and
instructing the commission of offences for the benefit of, at the
direction of or in association with a criminal organisation; and
• amend the Criminal Property Confiscation Act 2000 to enable the
confiscation of crime-derived or unlawfully acquired property if
a person who is a controlled person or a member of a declared
criminal organisation is involved in the commission of an offence;
and
• amend the Evidence Act 1906 to provide special protections to
victims and prosecution witnesses in proceedings for certain
offences involving criminal organisations; and
• amend the Misuse of Drugs Act 1981 to enable the making of a
drug trafficker declaration if, at the time of the commission of
page 1
Criminal Organisations Control Bill 2011
certain drug offences, the offender was a member of a declared
criminal organisation; and
• amend the Sentencing Act 1995 to require the imposition of
mandatory minimum sentences on offenders who commit certain
offences at the direction of, in association with or for the benefit
of a declared criminal organisation, and make such offenders
ineligible for parole; and
• make related amendments to various Acts,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 2
Criminal Organisations Control Bill 2011
Preliminary Part 1
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Criminal Organisations Control Act 2011.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) sections 1 and 2 -- on the day on which this Act
7 receives the Royal Assent;
8 (b) the provisions of the Act other than sections 1 and 2 and
9 Part 8 -- on a day fixed by proclamation, and different
10 days may be fixed for different provisions;
11 (c) Part 8 -- when section 7 comes into operation.
12 3. Terms used
13 (1) In this Act, unless the contrary intention appears --
14 associate, with another person --
15 (a) means --
16 (i) to be in company with the other person; or
17 (ii) to communicate with the other person by any
18 means (including by post, facsimile, telephone,
19 email or any other form of electronic
20 communication);
21 and
22 (b) includes associating with the other person, in any of the
23 ways mentioned in paragraph (a), within or outside
24 Western Australia, including outside Australia;
25 authorisation includes a licence, registration, approval, permit,
26 exemption, certificate or other form of authority (whether
27 granted or obtained under a law of this State or of another State
28 or Territory or of the Commonwealth);
29 CC Commissioner means the person holding the office of
30 Commissioner established under the Corruption and Crime
page 3
Criminal Organisations Control Bill 2011
Part 1 Preliminary
s. 3
1 Commission Act 2003 or the person acting in that office for the
2 reasons mentioned in section 14(1)(a) or (b) of that Act;
3 close family member has the meaning given in subsection (2);
4 Commissioner of Police means the person holding or acting in
5 the office of Commissioner of Police under the Police Act 1892;
6 controlled person means a person in relation to whom an
7 interim control order or a control order is in force;
8 control order means --
9 (a) an order made under section 57; or
10 (b) a registered interstate control order;
11 conviction --
12 (a) means a finding of guilt by a court, or the acceptance of
13 a plea of guilty by a court, whether or not a conviction is
14 recorded; and
15 (b) regardless of the Spent Convictions Act 1988 sections 13
16 and 25 to 27, includes a spent conviction as defined in
17 section 3 of that Act;
18 corresponding law has the meaning given in section 118;
19 court means the Supreme Court;
20 criminal intelligence information has the meaning given in
21 section 109;
22 declaration means --
23 (a) a declaration under Part 2 that an organisation is a
24 criminal organisation; or
25 (b) a registered interstate declaration;
26 declared criminal organisation means an organisation in
27 respect of which a declaration is in force;
28 designated authority means a judge or retired judge currently
29 designated under section 26;
30 firearm --
31 (a) has the meaning given in the Firearms Act 1973
32 section 4; and
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Criminal Organisations Control Bill 2011
Preliminary Part 1
s. 3
1 (b) includes ammunition as defined in that section;
2 firearms condition means a condition of an interim control
3 order or a control order that prohibits the controlled person to
4 whom the order relates from possessing a firearm;
5 firearms licence means --
6 (a) a licence issued, permit granted or approval given, under
7 the Firearms Act 1973, entitling a person to be in
8 possession of a firearm; or
9 (b) a Firearms Act Extract of Licence issued under the
10 Firearms Act 1973;
11 funds means --
12 (a) property and assets of every kind, whether tangible or
13 intangible, movable or immovable, however acquired; or
14 (b) legal documents or instruments in any form, including
15 electronic or digital, evidencing title to, or interest in,
16 property or assets to which paragraph (a) applies,
17 including, but not limited to, bank credits, travellers
18 cheques, bank cheques, money orders, shares, securities,
19 bonds, debt instruments, drafts and letters of credit;
20 interim control order means an order made under section 38;
21 interstate control order has the meaning given in section 118;
22 interstate declaration has the meaning given in section 118;
23 judge means a judge of the Supreme Court;
24 juvenile has the meaning given in section 73(1);
25 member, in relation to an organisation, includes --
26 (a) in the case of an organisation that is a body corporate, a
27 director or an officer of the body corporate; and
28 (b) in any case --
29 (i) an associate member or prospective member
30 (however described) of the organisation; and
31 (ii) a person who identifies himself or herself, in
32 some way, as belonging to the organisation;
page 5
Criminal Organisations Control Bill 2011
Part 1 Preliminary
s. 3
1 occupation means an occupation, trade, profession or calling of
2 any kind;
3 officer of the Corruption and Crime Commission means an
4 officer of the Commission as defined in the Corruption and
5 Crime Commission Act 2003 section 3(1);
6 organisation means any incorporated body or unincorporated
7 group (however structured), whether the body or group --
8 (a) is based in this State or elsewhere; or
9 (b) consists of persons ordinarily resident in this State or
10 elsewhere; or
11 (c) is part of, or affiliated with, another organisation, or is
12 separate from, or unaffiliated to, another organisation;
13 Parliamentary Commissioner means the Parliamentary
14 Commissioner for Administrative Investigations appointed
15 under the Parliamentary Commissioner Act 1971;
16 personal details, in relation to a person, means --
17 (a) the person's full name; and
18 (b) the person's date of birth; and
19 (c) the address where the person is residing; and
20 (d) the address where the person usually resides, if that is
21 different from the address referred to in paragraph (c);
22 and
23 (e) the person's business address;
24 prescribed activity has the meaning given in section 80(1);
25 protected submission means a submission made in accordance
26 with section 11;
27 recruit includes counsel, procure, solicit, incite and induce;
28 register means the Register of Criminal Organisations and
29 Controlled Persons kept under section 113;
30 registered interstate control order means an interstate control
31 order that is registered under Part 7 Division 3;
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Criminal Organisations Control Bill 2011
Preliminary Part 1
s. 3
1 registered interstate declaration means an interstate declaration
2 that is registered under Part 7 Division 2;
3 registrar means a person holding or acting in an office
4 designated under the Supreme Court Act 1935 as the Principal
5 Registrar or a registrar or a deputy registrar;
6 regulatory authority means a person or body that, under a
7 written law, has a function of granting authorisations to carry on
8 any occupation or activity;
9 responsible person, in relation to a controlled person who uses
10 or has access to a firearm in the course of that person's usual
11 occupation, means --
12 (a) the person who holds a firearms licence (or the
13 equivalent under a law of another State or a Territory)
14 for that firearm; or
15 (b) in any other case, the person by whom the controlled
16 person is employed or engaged;
17 senior police officer means a police officer who is, or is acting
18 as, an inspector or an officer of a rank more senior than an
19 inspector;
20 serious criminal activity means any of the following --
21 (a) obtaining material benefits from conduct that constitutes
22 a serious indictable offence;
23 (b) obtaining material benefits from conduct engaged in
24 outside this State (including outside Australia) that, if it
25 occurred in this State, would constitute a serious
26 indictable offence;
27 (c) committing a serious violence offence;
28 (d) engaging in conduct outside this State (including outside
29 Australia) that, if it occurred in this State, would
30 constitute a serious violence offence;
31 serious indictable offence means an indictable offence for
32 which the penalty specified by a written law is or includes
33 imprisonment for 5 years or more or life;
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Criminal Organisations Control Bill 2011
Part 1 Preliminary
s. 4
1 serious violence offence means an offence for which the
2 penalty specified by a written law is or includes imprisonment
3 for 10 years or more or life, if the conduct constituting the
4 offence involves any of the following --
5 (a) loss of a person's life or serious risk of loss of a person's
6 life;
7 (b) serious injury to a person or serious risk of serious
8 injury to a person;
9 (c) serious damage to property in circumstances
10 endangering the safety of any person;
11 weapon has the meaning given in the Weapons Act 1999
12 section 3;
13 working day means a day other than a Saturday, a Sunday or a
14 public holiday.
15 (2) For the purposes of this Act, a person (person A) is a close
16 family member of another person (person B) if --
17 (a) person A is a spouse or former spouse of person B; or
18 (b) person A is, or has been, in a de facto relationship with
19 person B; or
20 (c) person A is a parent or grandparent of person B
21 (whether by blood or marriage); or
22 (d) person A is a brother or sister of person B (whether by
23 blood or marriage); or
24 (e) person A is a guardian or carer of person B.
25 4. Purposes of this Act
26 (1) The purposes of this Act are --
27 (a) to disrupt and restrict the activities of organisations
28 involved in serious criminal activity, their members and
29 associates so as to reduce their capacity to carry out
30 activities that may facilitate serious criminal activity;
31 and
page 8
Criminal Organisations Control Bill 2011
Preliminary Part 1
s. 5
1 (b) to protect members of the public from violence
2 associated with those organisations.
3 (2) Without derogating from subsection (1), it is not the intention of
4 Parliament that the powers in this Act be used in a manner that
5 would diminish the freedom of persons in this State to
6 participate in advocacy, protest, dissent or industrial action.
7 5. Act binds Crown
8 (1) This Act binds the State and, so far as the legislative power of
9 Parliament permits, the Crown in all its other capacities.
10 (2) Nothing in this Act makes the Crown in any capacity liable to
11 prosecution for an offence.
page 9
Criminal Organisations Control Bill 2011
Part 2 Declared criminal organisations
Division 1 Applications for declaration
s. 6
1 Part 2 -- Declared criminal organisations
2 Division 1 -- Applications for declaration
3 6. Purpose of declaration
4 (1) The purpose of a declaration that an organisation is a criminal
5 organisation is to enable control orders to be made to disrupt
6 and restrict the activities of members and former members of
7 the organisation and certain other persons.
8 (2) A declaration also makes it an offence for anyone to recruit
9 persons to become members of the organisation.
10 7. Application for declaration
11 (1) The Commissioner of Police or the CC Commissioner may
12 apply for a declaration that an organisation (the respondent) is a
13 criminal organisation for the purposes of this Act.
14 (2) The application must --
15 (a) be in writing; and
16 (b) identify the particular organisation in respect of which
17 the declaration is sought; and
18 (c) describe the nature of the organisation and any of its
19 distinguishing characteristics; and
20 (d) set out the grounds on which the declaration is sought;
21 and
22 (e) set out the information supporting those grounds; and
23 (f) set out the details of any previous application for a
24 declaration in respect of the organisation and the
25 outcome of that application.
26 (3) The application must be accompanied by one or more affidavits
27 verifying the contents of the application, as follows --
28 (a) if the application is made by the Commissioner of
29 Police, an affidavit from that Commissioner or affidavits
30 from one or more other senior police officers;
page 10
Criminal Organisations Control Bill 2011
Declared criminal organisations Part 2
Applications for declaration Division 1
s. 8
1 (b) if the application is made by the CC Commissioner, an
2 affidavit from that Commissioner or affidavits from one
3 or more other officers of the Corruption and Crime
4 Commission who are authorised officers under the
5 Corruption and Crime Commission Act 2003
6 section 184.
7 (4) For the purpose of subsection (2)(b), the application may
8 identify the organisation by --
9 (a) specifying the name of the organisation; or
10 (b) specifying the name by which the organisation is
11 commonly known; or
12 (c) providing other particulars about the organisation.
13 (5) The application must be lodged with a registrar nominated for
14 the purpose by or in accordance with the regulations, and that
15 registrar must, without delay, refer the application to a
16 designated authority.
17 (6) On receiving an application that complies with this section, a
18 designated authority must determine the date, time and place of
19 the hearing of the application, and notify the applicant
20 accordingly.
21 8. Publication of notice of application
22 (1) If an application is made under section 7 in relation to an
23 organisation, the applicant must publish a notice in the Gazette
24 and in at least one newspaper circulating throughout the
25 State --
26 (a) specifying that an application has been made for a
27 declaration under this Part in respect of the organisation;
28 and
29 (b) setting out a brief explanation of the effect of Part 3
30 Division 5 in relation to a member or former member of
31 the organisation if the declaration is made and an
32 interim control order or a control order is made in
33 relation to the member or former member; and
page 11
Criminal Organisations Control Bill 2011
Part 2 Declared criminal organisations
Division 2 Determination of applications
s. 9
1 (c) stating that, if the declaration is made, it will be an
2 offence for anyone to recruit another person to become a
3 member of the organisation; and
4 (d) inviting members of the organisation and other persons
5 who may be directly affected (whether or not adversely)
6 by the outcome of the application to make submissions
7 to the designated authority at a hearing; and
8 (e) specifying the date, time and place of the hearing, as
9 determined by the designated authority.
10 (2) The notice must be published as soon as practicable but not later
11 than 5 working days after the application is lodged.
12 Division 2 -- Determination of applications
13 9. Hearing of application
14 (1) A designated authority must hold a hearing of an application for
15 a declaration.
16 (2) The rules of evidence do not apply to a hearing.
17 (3) The persons who may attend and make submissions at the
18 hearing of an application may do so personally or by counsel or
19 representative.
20 (4) For the purposes of determining an application for a
21 declaration --
22 (a) a designated authority has the powers of a Royal
23 Commission and the Chairman of a Royal Commission
24 under the Royal Commissions Act 1968; and
25 (b) all the provisions of that Act (other than section 18)
26 have effect as if they were enacted in this Act with any
27 necessary changes and in terms made applicable to a
28 designated authority and the determination of an
29 application for a declaration as if an application were a
30 matter into which a Royal Commission was appointed to
31 inquire under that Act.
page 12
Criminal Organisations Control Bill 2011
Declared criminal organisations Part 2
Determination of applications Division 2
s. 10
1 (5) Part 5 applies to proceedings under this Part.
2 10. Persons who may attend and make submissions
3 (1) The applicant for a declaration may be present and make
4 submissions in relation to the application at the hearing of the
5 application.
6 (2) The respondent may be present and make submissions in
7 relation to the application at the hearing, but subject to
8 subsection (5).
9 (3) Any member of the respondent, and any other person who may
10 be directly affected (whether or not adversely) by the outcome
11 of the application, may, with the leave of the designated
12 authority, be present and make submissions in relation to the
13 application at the hearing, but subject to subsection (5).
14 (4) Without limiting section 22 of the Royal Commissions Act 1968,
15 the designated authority may, so far as the designated authority
16 thinks proper, examine or cross-examine any witness on any
17 matter which the designated authority thinks relevant, or allow a
18 person appearing at the hearing to do so.
19 (5) Despite subsections (2), (3) and (4) --
20 (a) the applicant may object to any person referred to in any
21 of those subsections being present during part of the
22 hearing in which criminal intelligence information is
23 disclosed; and
24 (b) the designated authority must deal with the objection
25 under section 110.
26 (6) A person referred to in subsection (3) who does not wish to be
27 present at the hearing may make a protected submission to the
28 designated authority in private in accordance with section 11,
29 and the designated authority must deal with that submission
30 under that section.
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Criminal Organisations Control Bill 2011
Part 2 Declared criminal organisations
Division 2 Determination of applications
s. 11
1 11. Protected submissions
2 (1) For the purposes of this Part, a protected submission is a
3 submission made by a person who has reasonable grounds to
4 believe that he or she, or a close family member of that person,
5 may be subjected to action comprising or involving injury,
6 damage, loss, intimidation or harassment in reprisal for making
7 the submission.
8 (2) In proceedings under this Part, a designated authority must take
9 steps to maintain the confidentiality of a protected submission,
10 including steps to receive evidence and hear the submission in
11 private.
12 12. Designated authority can make declaration despite
13 non-appearance of respondent or others
14 A designated authority can make a declaration under this Part
15 whether or not any of the persons who are entitled to be present
16 and make submissions at the hearing take advantage of that
17 opportunity.
18 13. Designated authority may make declaration
19 (1) On an application under this Part in relation to a respondent, a
20 designated authority may make a declaration that the respondent
21 is a criminal organisation if the designated authority is
22 satisfied --
23 (a) that the respondent is an organisation; and
24 (b) that members of the organisation associate for the
25 purpose of organising, planning, facilitating, supporting
26 or engaging in serious criminal activity; and
27 (c) that the organisation represents a risk to public safety
28 and order in this State.
29 (2) In considering whether or not to make a declaration, the
30 designated authority may have regard to any of the following --
31 (a) any information suggesting that a link exists between the
32 organisation and serious criminal activity;
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Criminal Organisations Control Bill 2011
Declared criminal organisations Part 2
Determination of applications Division 2
s. 13
1 (b) any criminal convictions of --
2 (i) current or former members of the organisation;
3 (ii) persons who associate, or have associated, with
4 members of the organisation;
5 (c) any information suggesting that current or former
6 members of the organisation, or persons who associate,
7 or have associated, with members of the organisation,
8 are, or have been, involved in serious criminal activity
9 (whether directly or indirectly and whether or not that
10 involvement has resulted in any criminal convictions);
11 (d) any information suggesting that members of an
12 interstate or overseas chapter or branch of the
13 organisation associate for the purpose of organising,
14 planning, facilitating, supporting or engaging in serious
15 criminal activity;
16 (e) any submissions made in relation to the application in
17 accordance with section 10;
18 (f) anything else the designated authority considers
19 relevant.
20 (3) For the purposes of subsection (1)(b), the designated authority
21 may be satisfied that members of the organisation associate for
22 the purpose of organising, planning, facilitating, supporting or
23 engaging in serious criminal activity --
24 (a) whether or not all the members associate for that
25 purpose or only some of the members, but if the
26 designated authority is satisfied that only some of the
27 members associate for that purpose, the designated
28 authority must be satisfied that those members constitute
29 a significant group within the organisation, either in
30 terms of their numbers or in terms of their capacity to
31 influence the organisation or its members;
32 (b) whether or not members associate for the purpose of
33 organising, planning, facilitating, supporting or
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Criminal Organisations Control Bill 2011
Part 2 Declared criminal organisations
Division 2 Determination of applications
s. 14
1 engaging in the same serious criminal activities or
2 different ones;
3 (c) whether or not the members also associate for other
4 purposes.
5 14. Reasons for decision
6 (1) A designated authority must give the authority's reasons for
7 deciding --
8 (a) to make a declaration; or
9 (b) not to make a declaration.
10 (2) Section 110 applies to the giving of reasons for the decision.
11 (3) When a designated authority has made a decision on an
12 application under this Part for a declaration --
13 (a) the designated authority must, as soon as practicable,
14 provide a copy of the authority's reasons for the
15 decision to --
16 (i) the Commissioner of Police; and
17 (ii) the CC Commissioner;
18 and
19 (aa) the designated authority must, as soon as practicable,
20 provide a copy of the authority's reasons for the
21 decision to the respondent or the respondent's
22 representative, but only if the respondent or the
23 respondent's representative, before the hearing of the
24 application for the declaration ends --
25 (i) requests to be provided with a copy; and
26 (ii) provides an address to which the copy may be
27 sent;
28 and
29 (b) the Commissioner of Police must make those reasons for
30 the authority's decision publicly available on the
31 register.
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Criminal Organisations Control Bill 2011
Declared criminal organisations Part 2
Determination of applications Division 2
s. 15
1 15. Notice of declaration
2 (1) As soon as practicable after a declaration is made, the applicant
3 for the declaration must publish notice of the declaration in the
4 Gazette and in at least one newspaper circulating throughout the
5 State.
6 (2) The notice must --
7 (a) state that the organisation specified in the notice is a
8 declared criminal organisation under this Act; and
9 (b) state that the designated authority's reasons for making
10 the declaration are publicly available on the register; and
11 (c) set out a brief explanation of the effect of Part 3
12 Division 5 in relation to a member or former member of
13 the organisation if an interim control order or a control
14 order is made in relation to the member or former
15 member of the organisation; and
16 (d) state that it is an offence for anyone to recruit another
17 person to become a member of the organisation; and
18 (e) state when the declaration takes effect, and when it will
19 cease to have effect unless sooner revoked or renewed.
20 16. Duration of declaration
21 (1) A declaration takes effect as follows --
22 (a) if the declaration does not state when it takes effect, on
23 the day after the day on which notice of it is published in
24 the Gazette;
25 (b) on a later day specified by the designated authority in
26 the declaration.
27 (2) The declaration remains in force for a period of 5 years
28 beginning on the day on which it takes effect, unless it is sooner
29 revoked or renewed.
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Criminal Organisations Control Bill 2011
Part 2 Declared criminal organisations
Division 3 Renewal, revocation and expiry of declarations
s. 17
1 17. Declaration not affected by change in name or
2 reorganisation
3 (1) A change in the name or membership of a declared criminal
4 organisation does not affect the declaration relating to that
5 organisation.
6 (2) The declared criminal organisation is taken to include any
7 organisation into which the members substantially re-form
8 themselves with or without dissolving the organisation named in
9 the declaration.
10 Division 3 -- Renewal, revocation and expiry of declarations
11 18. Renewal of declaration
12 (1) An application for the renewal of a declaration may be made
13 by --
14 (a) the Commissioner of Police, if he or she was the
15 applicant for the declaration; or
16 (b) the CC Commissioner, if he or she was the applicant for
17 the declaration.
18 (2) An application for the renewal of a declaration can be made
19 either before or after the declaration expires.
20 (3) Divisions 1 and 2 apply to an application for the renewal of a
21 declaration in the same way that they apply to an application for
22 a new declaration.
23 (4) If an application for the renewal of a declaration is made but not
24 determined before the day on which the declaration would
25 otherwise expire, the declaration continues in force until one of
26 the following occurs --
27 (a) the application for the renewal of the declaration is
28 withdrawn;
29 (b) the application for the renewal of the declaration is
30 determined.
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Criminal Organisations Control Bill 2011
Declared criminal organisations Part 2
Renewal, revocation and expiry of declarations Division 3
s. 19
1 (5) The renewal of a declaration takes effect as follows --
2 (a) if the declaration is renewed before it expires, from the
3 date on which the declaration would otherwise have
4 expired (as determined before the application of
5 subsection (4));
6 (b) if the declaration is renewed after it expires, on the day
7 after the day on which notice of the renewal is published
8 in the Gazette in accordance with section 15.
9 (6) There are no limits on the number of times a declaration can be
10 renewed.
11 19. Application for revocation of declaration
12 (1) The following persons may, at any time, apply for the
13 revocation of a declaration in force in respect of an
14 organisation --
15 (a) the Commissioner of Police, but only in relation to a
16 declaration for which he or she was the applicant;
17 (b) the CC Commissioner, but only in relation to a
18 declaration for which he or she was the applicant;
19 (c) the declared criminal organisation;
20 (d) any member of the declared criminal organisation;
21 (e) if the revocation of the declaration is sought on the
22 ground set out in section 21(1)(b), any person who is a
23 former member of the declared criminal organisation.
24 (2) An application must --
25 (a) be in writing; and
26 (b) set out the grounds on which revocation is sought, and
27 the information supporting those grounds; and
28 (c) be supported by an affidavit from the applicant verifying
29 the contents of the application; and
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Criminal Organisations Control Bill 2011
Part 2 Declared criminal organisations
Division 3 Renewal, revocation and expiry of declarations
s. 20
1 (d) be lodged with the nominated registrar referred to in
2 section 7(5), who must, without delay, refer the
3 application to a designated authority.
4 (3) Not later than 7 working days after the application is lodged, the
5 applicant must --
6 (a) if the applicant is not the Commissioner of Police or the
7 CC Commissioner, give both of those persons --
8 (i) notification of the making of the application; and
9 (ii) a copy of the application and the supporting
10 affidavit;
11 and
12 (b) publish notice of the making of the application in the
13 Gazette and in at least one newspaper circulating
14 throughout the State.
15 (4) This section is subject to section 20.
16 20. Consideration of application for revocation may be
17 dismissed
18 (1) This section applies if --
19 (a) an application is made under section 19 for the
20 revocation of a declaration; and
21 (b) the applicant is not the Commissioner of Police or the
22 CC Commissioner.
23 (2) If this section applies, a designated authority may refuse to
24 consider the application if --
25 (a) at least one application for the revocation of the
26 declaration has previously been made under section 19;
27 and
28 (b) the designated authority considers that the latest
29 application does not set out any new grounds for the
30 revocation.
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Criminal Organisations Control Bill 2011
Declared criminal organisations Part 2
Renewal, revocation and expiry of declarations Division 3
s. 21
1 21. Determination of application for revocation
2 (1) A designated authority may revoke a declaration on an
3 application made under section 19 only if the designated
4 authority is satisfied that --
5 (a) there has been a substantial change in the nature or
6 membership of the declared criminal organisation to the
7 extent that --
8 (i) members of the organisation no longer associate
9 for the purpose of organising, planning,
10 facilitating, supporting or engaging in serious
11 criminal activity; and
12 (ii) the organisation no longer represents a risk to
13 public safety and order in this State;
14 or
15 (b) the organisation in respect of which the declaration was
16 made no longer exists, and section 17(2) does not apply
17 with respect to members of that organisation.
18 (2) Sections 9 to 12 apply to an application under section 19 for the
19 revocation of a declaration with all necessary modifications, and
20 with the following specific modifications --
21 (a) the persons who may be present and make submissions
22 in relation to the application at the hearing are --
23 (i) the Commissioner of Police; and
24 (ii) the CC Commissioner; and
25 (iii) the applicant, if not the Commissioner of Police
26 or the CC Commissioner; and
27 (iv) with the leave of the designated authority, any
28 member (or if the application is made on the
29 ground set out in subsection (1)(b), any former
30 member) of the declared criminal organisation
31 and any other person who may be directly
32 affected (whether or not adversely) by the
33 outcome of the application;
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Criminal Organisations Control Bill 2011
Part 2 Declared criminal organisations
Division 3 Renewal, revocation and expiry of declarations
s. 22
1 (b) an objection under section 10(5) may be made only by
2 the Commissioner of Police or the CC Commissioner,
3 and may be made in relation to any person referred to in
4 paragraph (a)(iii) or (iv) of this subsection;
5 (c) any person referred to in paragraph (a)(iv) may make a
6 protected submission in accordance with section 11.
7 22. Reasons for decision
8 (1) A designated authority must give the authority's reasons for
9 deciding --
10 (a) to refuse to consider an application made under
11 section 19 for the revocation of a declaration; or
12 (b) to revoke a declaration on an application made under
13 section 19; or
14 (c) not to revoke a declaration on an application made under
15 section 19.
16 (2) Section 110 applies to the giving of reasons for the decision.
17 (3) When a designated authority has made a decision on an
18 application made under section 19 for the revocation of a
19 declaration --
20 (a) the designated authority must, as soon as practicable,
21 provide a copy of the authority's reasons for the
22 decision to --
23 (i) the Commissioner of Police; and
24 (ii) the CC Commissioner;
25 and
26 (b) the Commissioner of Police must make those reasons for
27 the authority's decision publicly available on the
28 register.
29 23. When revocation of declaration takes effect
30 If a designated authority revokes a declaration under section 21,
31 the revocation takes effect immediately.
page 22
Criminal Organisations Control Bill 2011
Declared criminal organisations Part 2
Designated authorities Division 4
s. 24
1 24. Notice of revocation or expiry of declaration
2 As soon as practicable after a declaration is revoked or expires,
3 the Commissioner of Police or the CC Commissioner
4 (whichever was the applicant for the declaration) must --
5 (a) publish notice of the revocation or expiry in the Gazette
6 and in at least one newspaper circulating throughout the
7 State; and
8 (b) take all reasonably practicable steps to give notice of the
9 revocation or expiry to every person who made a
10 submission (including a protected submission) at the
11 hearing at which the declaration was made; and
12 (c) if he or she is aware that the declaration has effect under
13 the law of another State or a Territory, give notice of the
14 revocation or expiry to the commissioner (by whatever
15 name called) of the police force or police service of that
16 State or Territory.
17 25. Effect of expiry or revocation of declaration
18 (1) If the declaration relating to the declared criminal organisation
19 identified in an interim control order or control order in
20 accordance with section 60(1)(c) expires or is revoked, the order
21 ceases to have effect on that expiry or revocation.
22 (2) The expiry or revocation of a declaration does not affect --
23 (a) any person's liability for anything done or omitted
24 before that expiry or revocation; or
25 (b) any investigation or proceeding in respect of that
26 liability.
27 Division 4 -- Designated authorities
28 26. Designation of judges or retired judges to determine
29 applications
30 (1) The Governor may, in writing, designate one or more judges or
31 retired judges for the purposes of this Act.
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Criminal Organisations Control Bill 2011
Part 2 Declared criminal organisations
Division 4 Designated authorities
s. 27
1 (2) The Governor cannot designate a judge or retired judge under
2 this section unless --
3 (a) the judge or retired judge has consented in writing to the
4 designation; and
5 (b) the consent is in force.
6 (3) The period of designation and, in the case of a retired judge, the
7 terms and conditions of appointment of a designated authority
8 are as set out in the instrument of appointment.
9 (4) The period of designation of a retired judge must not exceed
10 5 years, but a retired judge may be designated for a further term.
11 27. Termination of designation
12 (1) A judge or retired judge who has given consent under
13 section 26(2)(a) may, in writing, revoke that consent.
14 (2) The Governor cannot revoke the designation of a judge or
15 retired judge under section 26.
16 (3) However, the designation of a judge or retired judge as a
17 designated authority is revoked if --
18 (a) the judge or retired judge revokes his or her consent in
19 accordance with subsection (1); or
20 (b) in the case of a judge --
21 (i) he or she ceases to be a judge; or
22 (ii) the Chief Justice of Western Australia notifies
23 the Attorney General that the judge should not
24 continue to be a designated authority because the
25 Chief Justice considers that the amount of time
26 that the judge may be required to devote to the
27 exercise of the functions of a designated
28 authority will or is likely to compromise the
29 ability of the court to perform its functions.
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Criminal Organisations Control Bill 2011
Declared criminal organisations Part 2
Designated authorities Division 4
s. 28
1 28. Designated authorities not subject to control by Executive
2 The selection of a designated authority to exercise any particular
3 function conferred on designated authorities by this Act is not to
4 be made by the Attorney General or any other Minister of the
5 Crown, and the exercise of that particular function is not subject
6 to the control and direction of the Attorney General or any other
7 Minister of the Crown.
8 29. Any designated authority may act
9 Any designated authority may determine an application for the
10 renewal or revocation of a declaration, regardless of whether or
11 not he or she made that declaration.
12 30. Protection and immunity
13 A designated authority has, in relation to the exercise of a
14 function conferred on a designated authority by this Act, the
15 same protection and immunity as a judge has in relation to
16 proceedings in the Supreme Court.
17 31. Nature and functions of designated authority
18 (1) The functions conferred on a designated authority by this Act
19 are conferred on the designated authority in a personal capacity
20 and not as a court or a member of a court.
21 (2) Anything done by a designated authority under this Act has
22 effect only by virtue of this Act, and is not to be taken by
23 implication to be done by a court.
24 (3) Subsection (2) does not limit subsection (1).
25 32. Record of proceedings
26 (1) In this section --
27 declaration proceedings means proceedings under this Part or
28 section 128.
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Criminal Organisations Control Bill 2011
Part 2 Declared criminal organisations
Division 4 Designated authorities
s. 32
1 (2) The records of declaration proceedings must be dealt with in
2 accordance with the requirements (if any) specified in the
3 regulations.
4 (3) The regulations may --
5 (a) regulate and prescribe the procedure and practice to be
6 followed in respect of --
7 (i) the custody of the records of declaration
8 proceedings;
9 (ii) access to, and the searching, inspection and
10 copying of, the records of declaration
11 proceedings;
12 (b) limit or prohibit access to, and the searching, inspection
13 and copying of, records of declaration proceedings;
14 (c) prescribe fees payable in respect of access to, and the
15 searching, inspection and copying of, any record of
16 declaration proceedings.
page 26
Criminal Organisations Control Bill 2011
Control orders Part 3
Overview Division 1
s. 33
1 Part 3 -- Control orders
2 Division 1 -- Overview
3 33. Overview
4 (1) This Part provides for the making of control orders in relation to
5 persons who are members of a declared criminal organisation
6 and persons who have an association with a declared criminal
7 organisation.
8 (2) A control order imposes certain restrictions on the activities of
9 those persons, such as prohibiting them from associating with
10 each other, and may also restrict other activities such as carrying
11 on certain occupations, possessing firearms and other things,
12 and accessing or using certain forms of technology or
13 communication.
14 (3) A control order in relation to a person can be obtained by way
15 of a 2-stage process or a one-stage process.
16 (4) The 2-stage process is as follows --
17 (a) the Commissioner of Police applies to the Supreme
18 Court for an interim control order in relation to the
19 person, and if the court grants the order --
20 (i) the order takes effect when it is served and
21 continues in force pending a hearing to decide
22 whether a control order will be granted; and
23 (ii) certain restrictions on the activities of the person
24 apply or can be stated in the order to apply while
25 the interim control order remains in force;
26 (b) the court holds a hearing and decides whether or not to
27 grant a control order confirming the interim control
28 order, and if so, what consequential or ancillary orders
29 should be made (such as exempting the person from
30 some of the restrictions that would ordinarily apply
31 under a control order).
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Criminal Organisations Control Bill 2011
Part 3 Control orders
Division 2 Interim control orders
s. 34
1 (5) The one-stage process is as follows --
2 (a) the Commissioner of Police applies to the Supreme
3 Court for a control order in relation to the person;
4 (b) the court holds a hearing and decides whether or not to
5 grant a control order, and if so, what consequential or
6 ancillary orders should be made (such as exempting the
7 person from some of the restrictions that would
8 ordinarily apply under a control order).
9 (6) A control order remains in force for up to 5 years, but can be
10 revoked or varied on application by the Commissioner of Police
11 or the person to whom it relates.
12 (7) This section is intended only as a guide to the general scheme
13 and effect of this Part, and does not limit the other provisions of
14 this Part.
15 34. Application of provisions protecting criminal intelligence
16 information
17 Part 5 applies to proceedings under this Part.
18 Division 2 -- Interim control orders
19 Subdivision 1 -- Applications for interim control orders
20 35. Application for interim control order
21 (1) The Commissioner of Police may apply to the court for an
22 interim control order relating to a person.
23 (2) An application for an interim control order can be made only in
24 relation to a person specified in section 57(2).
25 36. Form of application
26 An application under section 35 must --
27 (a) be in writing; and
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Criminal Organisations Control Bill 2011
Control orders Part 3
Interim control orders Division 2
s. 37
1 (b) identify the person in relation to whom the interim
2 control order is sought by --
3 (i) specifying the person's name (or the name by
4 which they are commonly known); or
5 (ii) if the person's name is unknown, attaching to the
6 application a recent photograph or recent digital
7 image of the person;
8 and
9 (c) set out the grounds on which the interim control order is
10 sought; and
11 (d) set out the information supporting those grounds; and
12 (e) set out any non-standard conditions sought to be
13 included in the interim control order in accordance with
14 section 58, the grounds on which those conditions are
15 sought, and the information supporting those grounds;
16 and
17 (f) state whether or not the person in relation to whom the
18 interim control order is sought is already a controlled
19 person; and
20 (g) be accompanied by an affidavit from the Commissioner
21 of Police, or affidavits from one or more other senior
22 police officers, verifying the contents of the application.
23 37. Application for hearing without notice or on notice
24 An application under section 35 can ask the court to hear the
25 application for the interim control order --
26 (a) without notice to, and in the absence of, the person to
27 whom the application relates; or
28 (b) at a hearing held on notice to that person.
page 29
Criminal Organisations Control Bill 2011
Part 3 Control orders
Division 2 Interim control orders
s. 38
1 Subdivision 2 -- Determination of applications
2 38. Making of interim control order
3 (1) On an application under section 35, the court may make an
4 interim control order in relation to the person to whom the
5 application relates if the court is satisfied --
6 (a) that the application complies with section 36; and
7 (b) that, on the basis of the application and any further
8 information supplied by the Commissioner of Police, the
9 court could make a control order under section 57 in
10 relation to that person.
11 (2) If the court considers it convenient and appropriate to do so, the
12 court may hear and determine, at the same time, 2 or more
13 applications for interim control orders against different people,
14 but separate interim control orders must be made with respect to
15 each person in relation to whom the court decides to make an
16 order.
17 (3) If the court is satisfied that it is appropriate in the
18 circumstances, the court can make an interim control order in
19 relation to a person without notice to, and in the absence of, that
20 person.
21 (4) If the court makes an interim control order --
22 (a) the standard conditions apply under the order in
23 accordance with Division 5 Subdivision 1; and
24 (b) in addition, the court may --
25 (i) impose any other condition the court considers
26 appropriate under section 58; and
27 (ii) make any consequential or ancillary orders it
28 thinks fit under section 59.
29 39. Explanation of interim control order
30 (1) When the court makes an interim control order, and the person
31 to whom the order relates is present in court at the time, the
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Criminal Organisations Control Bill 2011
Control orders Part 3
Interim control orders Division 2
s. 40
1 court must ensure that all reasonable steps are taken to give the
2 person the explanation set out in subsection (3).
3 (2) If the person is not present in court when the interim control
4 order is made, the Commissioner of Police must ensure that all
5 reasonable steps are taken to give the person the explanation set
6 out in subsection (3) when notice of the order is served
7 personally on the person.
8 (3) The person must have explained to them, in language likely to
9 be understood by them --
10 (a) the person's obligations under the interim control order;
11 and
12 (b) the consequences that may follow if the person fails to
13 comply with those obligations.
14 (4) The explanation must, so far as practicable, be given both orally
15 and in writing.
16 (5) Failure to comply with this section does not invalidate an
17 interim control order.
18 40. Court to fix hearing date for application for control order
19 (1) If the court makes an interim control order in relation to a
20 person --
21 (a) the application for the interim control order is treated as
22 an application under Division 3 by the Commissioner of
23 Police for a control order confirming the interim control
24 order made in relation to the person; and
25 (b) the court must fix a date, time and place for the hearing
26 of the application for a control order.
27 (2) The date fixed under subsection (1)(b) --
28 (a) must be as soon as practicable after the interim control
29 order is made; but
30 (b) must allow the person to whom the interim control order
31 relates sufficient time to prepare and file a notice of
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Criminal Organisations Control Bill 2011
Part 3 Control orders
Division 2 Interim control orders
s. 41
1 objection under section 55 and serve a copy of the notice
2 on the Commissioner of Police.
3 (3) In order that subsection (2)(b) is complied with, the court may
4 at any time vary the date fixed under subsection (1)(b).
5 41. Notice of making of interim control order
6 (1) The Commissioner of Police must, within 28 days after the
7 making of an interim control order, serve notice of the order
8 personally on the person to whom it relates.
9 (2) This section is subject to section 44.
10 42. Content of notice
11 (1) The notice required by section 41 to be served on a person
12 must --
13 (a) either --
14 (i) specify the person to whom the interim control
15 order relates; or
16 (ii) if the person's name is unknown, include or have
17 attached to it a recent photograph or recent
18 digital image of that person;
19 and
20 (b) include a statement of the grounds on which the interim
21 control order was made, but must not contain
22 information the disclosure of which would be in breach
23 of section 111; and
24 (c) include the information that section 60(1)(c) requires to
25 be included in a control order; and
26 (d) set out --
27 (i) an explanation of the standard conditions
28 applying under an interim control order in
29 accordance with Division 5 Subdivision 1; and
30 (ii) any other conditions of the order imposed under
31 section 58; and
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Criminal Organisations Control Bill 2011
Control orders Part 3
Interim control orders Division 2
s. 43
1 (iii) any consequential or ancillary orders made under
2 section 59;
3 and
4 (e) advise the person that the names of persons who are
5 controlled persons are listed on the register kept under
6 section 113; and
7 (f) set out an explanation of --
8 (i) the right to apply under section 46 for the
9 revocation of the interim control order, if it was
10 made without notice; and
11 (ii) the right to apply under section 49 for the
12 variation of the interim control order; and
13 (iii) the right to object to the making of a control
14 order confirming the interim control order at the
15 hearing of the application for that control order;
16 and
17 (iv) the procedure to be followed in notifying the
18 court before the hearing of the grounds of
19 objection in accordance with section 55;
20 and
21 (g) state the date, time and place fixed under section 40 for
22 the hearing of the application for a control order.
23 (2) A copy of the affidavit or affidavits that accompanied the
24 application for the interim control order must be attached to the
25 notice of the order.
26 (3) Subsection (2) is subject to section 112.
27 43. Powers to request particulars and detain for purposes of
28 service
29 (1) A police officer who has reasonable cause to suspect that
30 someone is a person on whom notice of the making of an
31 interim control order is required to be served under section 41
32 may --
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1 (a) require the person to disclose his or her personal details;
2 and
3 (b) require the person to remain at a particular place for as
4 long as is reasonably necessary (but no longer than
5 2 hours) to serve the notice.
6 (2) If a police officer has reasonable cause to suspect that a personal
7 detail given by a person in response to a requirement under
8 subsection (1) is false, the officer may require the person to
9 produce evidence of the correctness of the detail.
10 (3) If the person refuses or fails to comply with a requirement under
11 subsection (1) or (2), the police officer may detain the person at
12 that place for as long as is reasonably necessary (but no longer
13 than 2 hours) to serve the notice.
14 (4) Section 104 makes a refusal or failure to comply with a
15 requirement under subsection (1) or (2) and giving false
16 particulars in response to a requirement an offence.
17 (5) A person who is required to remain or is detained at a particular
18 place under this section when he or she is not under arrest is to
19 be taken to be in lawful custody.
20 44. Alternative means of service
21 (1) If the Commissioner of Police cannot practicably serve notice of
22 an interim control order on the person to whom it relates in
23 accordance with section 41, the court may, by order --
24 (a) direct that service of the notice be postponed for a
25 specified period of not more than 28 days after the
26 period within which the notice is required to be served
27 under section 41; or
28 (b) direct that, instead of personal service, specified steps be
29 taken to bring the interim control order to the attention
30 of that person.
31 (2) The court must not make an order under subsection (1) unless it
32 is satisfied that the Commissioner has taken all reasonably
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1 practicable steps to serve the notice personally within the period
2 and as required by section 41.
3 (3) The court can make an order under subsection (1) whether or
4 not the 28 day period specified in section 41 has expired.
5 (4) An order under subsection (1)(b) may direct that notice of the
6 interim control order be taken to have been served on the
7 happening of a specified event or on the expiry of a specified
8 time.
9 (5) If the court is satisfied that, despite the best endeavours of the
10 Commissioner, steps specified in an order under
11 subsection (1)(b) have not brought an interim control order to
12 the attention of the person to whom it relates, the court may
13 order that the notice of the interim control order be published in
14 the Gazette, a daily newspaper circulating throughout the State
15 or by some other form of public notification.
16 (6) The taking of steps to bring an interim control order to the
17 attention of the person to whom it relates in compliance with an
18 order of the court under subsection (1) or (5) is taken to
19 constitute personal service for the purposes of sections 41
20 and 45(1)(b).
21 45. Commencement and duration of interim control order
22 (1) An interim control order comes into force as follows --
23 (a) when the order is made, if the person to whom the order
24 relates is present in court at the time;
25 (b) in any other case, when notice of the order is served
26 personally on the person to whom it relates in
27 accordance with section 41 or 44.
28 (2) An interim control order remains in force until one of the
29 following occurs --
30 (a) the interim control order, having been made without
31 notice to the person to whom it relates, is revoked under
32 section 47;
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1 (b) the application for a control order confirming the interim
2 control order is withdrawn or dismissed;
3 (c) the interim control order is revoked under
4 section 56(1)(b);
5 (d) a control order is made confirming the interim control
6 order (with or without variation) and the control order
7 comes into force under section 62(1);
8 (e) the interim control order ceases to have effect under
9 section 25(1)
10 Subdivision 3 -- Revocation of interim control orders made
11 without notice
12 46. Application for revocation of interim control order made
13 without notice
14 (1) If an interim control order is made without notice to the person
15 to whom it relates, that person may apply to the court for the
16 revocation of the order --
17 (a) on the grounds that the applicant for the order failed to
18 disclose to the court that heard the application for the
19 order a material matter that, at the time of that hearing,
20 was known to, or reasonably discoverable by, the
21 applicant; or
22 (b) on the grounds that the order should not have been made
23 or is no longer appropriate.
24 (2) An application can be made under this section at any time after
25 the interim control order is made and before it ceases to be in
26 force.
27 (3) An application must --
28 (a) be in writing; and
29 (b) set out the grounds on which revocation of the interim
30 control order is sought, and the information supporting
31 those grounds; and
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1 (c) be supported by an affidavit from the applicant verifying
2 the contents of the application; and
3 (d) be filed in the court, together with the accompanying
4 affidavit.
5 (4) The person to whom an interim control order relates cannot
6 make an application under this section for the revocation of the
7 order if the court has already determined --
8 (a) a previous application for the revocation of that order; or
9 (b) an application under section 49 for the variation of that
10 order.
11 (5) If an application is made under this section --
12 (a) the person to whom the interim control order relates and
13 the Commissioner of Police may appear at the hearing
14 of the application and make submissions in relation to
15 the application; but
16 (b) the court may hear and determine the application
17 whether or not any of the persons who are entitled to be
18 present and make submissions at the hearing take
19 advantage of that opportunity.
20 47. Determination of application to revoke interim control
21 order
22 (1) The court must hear an application under section 46 as soon as
23 practicable after the application is made.
24 (2) On hearing an application under section 46 for the revocation of
25 an interim control order, the court may --
26 (a) by order, revoke the interim control order if the court is
27 satisfied that the grounds of the application are made
28 out; or
29 (b) vary the interim control order as if an application had
30 been made under section 49, and section 50 applies
31 accordingly; or
32 (c) dismiss the application.
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1 (3) A revocation order takes effect when it is made.
2 (4) Unless the controlled person is present in court when the
3 revocation order is made, the Commissioner of Police must
4 serve a copy of the revocation order personally on the controlled
5 person as soon as practicable after the order is made.
6 (5) Section 44 applies with all necessary modifications in relation to
7 service of a copy of the revocation order on the controlled
8 person.
9 48. Revocation of interim control order halts proceedings for
10 control order
11 (1) If an interim control order made without notice to the person to
12 whom it relates is revoked under section 47 --
13 (a) the application for the interim control order ceases to be
14 treated under section 40(1)(a) as an application for a
15 control order confirming the interim control order; and
16 (b) the proceedings for a control order in relation to that
17 person are discontinued.
18 (2) Subsection (1) does not prevent the Commissioner of Police
19 from making another application for an interim control order, or
20 an application for a control order, in relation to the same person.
21 Subdivision 4 -- Variation of interim control orders
22 49. Application for variation of interim control order
23 (1) The person to whom an interim control order relates or the
24 Commissioner of Police may apply to the court to vary the
25 interim control order.
26 (2) An application can be made under this section at any time after
27 the interim control order is made and before it ceases to be in
28 force.
29 (3) The person to whom an interim control order relates and the
30 Commissioner of Police can each make more than one
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1 application under this section to vary the same interim control
2 order, but --
3 (a) a second or subsequent application can be made by the
4 person to whom the interim control order relates only
5 with the leave of the court; and
6 (b) the court may grant leave only if it is satisfied that there
7 has been a substantial change in the relevant
8 circumstances since an application to vary the order was
9 last determined by the court.
10 (4) If an application is made under this section --
11 (a) the person to whom the interim control order relates and
12 the Commissioner of Police may appear at the hearing
13 of the application and make submissions in relation to
14 the application; but
15 (b) the court may hear and determine the application
16 whether or not any of the persons who are entitled to be
17 present and make submissions at the hearing take
18 advantage of that opportunity.
19 50. Determination of application for variation
20 (1) On hearing an application under section 49 for the variation of
21 an interim control order, the court may --
22 (a) vary the interim control order, and for that purpose may
23 exercise any power that it could have exercised on the
24 making of the original interim control order; or
25 (b) dismiss the application.
26 (2) If the court varies an interim control order under this section,
27 the variation takes effect --
28 (a) if the person to whom the order relates is present in
29 court at the time, when the variation is made; or
30 (b) in any other case, when notice of the variation is served
31 personally on that person.
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1 (3) Sections 43 and 44 apply with all necessary modifications in
2 relation to service of notice of the variation of an interim control
3 order on the person to whom the order relates.
4 (4) Section 39 applies with all necessary modifications in relation to
5 the variation of an interim control order, but only if the variation
6 changes the obligations imposed under the order on the person
7 to whom the order relates.
8 (5) Subsection (4) does not apply if the interim control order is
9 varied on the application of, and only in the terms sought by, the
10 person to whom the order relates.
11 Division 3 -- Control orders
12 Subdivision 1 -- How proceedings for control order begun
13 51. How proceedings for control order begun
14 Proceedings for a control order in relation to a person may be
15 begun --
16 (a) by making an application under section 52 for a control
17 order in relation to the person; or
18 (b) by making an application under section 35 for an interim
19 control order in relation to the person, and if the court
20 makes the interim control order the application is treated
21 under section 40(1)(a) as an application under this
22 Division for a control order confirming the interim
23 control order.
24 Subdivision 2 -- Applications for control orders
25 52. Application for control order
26 (1) The Commissioner of Police may apply to the court for a
27 control order relating to a person.
28 (2) An application for a control order can be made only in relation
29 to a person specified in section 57(2).
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1 53. Form of application
2 An application under section 52 must --
3 (a) be in writing; and
4 (b) identify the person in relation to whom the control order
5 is sought by --
6 (i) specifying the person's name (or the name by
7 which they are commonly known); or
8 (ii) if the person's name is unknown, attaching to the
9 application a recent photograph or recent digital
10 image of the person;
11 and
12 (c) set out the grounds on which the control order is sought;
13 and
14 (d) set out the information supporting those grounds; and
15 (e) set out any non-standard conditions sought to be
16 included in the control order in accordance with
17 section 58, the grounds on which those conditions are
18 sought, and the information supporting those grounds;
19 and
20 (f) state whether or not the person in relation to whom the
21 control order is sought is already a controlled person;
22 and
23 (g) be accompanied by an affidavit from the Commissioner
24 of Police, or affidavits from one or more other senior
25 police officers, verifying the contents of the application.
26 54. Filing and service of application
27 (1) An application under section 52, together with the
28 accompanying affidavit or affidavits, must be filed in the court.
29 (2) As soon as practicable after the application has been filed, the
30 applicant must serve the application personally on the person to
31 whom the application relates.
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1 (3) Sections 43 and 44 apply with all necessary modifications in
2 relation to service of the application on that person.
3 (4) The following must be served with the application --
4 (a) a copy of the affidavit or affidavits that accompanied the
5 application for the control order;
6 (b) a written notice setting out an explanation of --
7 (i) the right to object to the making of a control
8 order at the hearing of the application for the
9 control order; and
10 (ii) the procedure to be followed in notifying the
11 court before the hearing of the grounds of
12 objection in accordance with section 55.
13 (5) Subsection (4) is subject to section 112.
14 Subdivision 3 -- Notice of objection to making of control order
15 55. Notice of objection
16 (1) The person on whom notice of the making of an interim control
17 order has been personally served in accordance with section 41
18 may object to the making of a control order at the hearing of the
19 application for a control order confirming the interim control
20 order.
21 (2) The person on whom notice of an application for a control order
22 has been personally served in accordance with section 54(2)
23 may object to the making of the order at the hearing of the
24 application.
25 (3) If the person wishes to object to the making of the order, the
26 person must file a notice of objection in the court.
27 (4) The notice of objection must --
28 (a) be in writing; and
29 (b) be filed not later than 14 working days after notice of
30 the making of the interim control order or notice of the
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1 application for a control order (as the case requires) was
2 served on the person, or within a longer period allowed
3 by the court; and
4 (c) set out the grounds on which the person objects to the
5 making of the order; and
6 (d) be accompanied by an affidavit from the person
7 verifying the grounds of objection.
8 (5) The person must also serve a copy of the notice of objection on
9 the Commissioner of Police not later than 5 working days after
10 the notice is filed in the court.
11 Subdivision 4 -- Making control orders
12 56. Determination of application for control order
13 (1) On an application for a control order confirming an interim
14 control order, the court may --
15 (a) make a control order under section 57 confirming, or
16 confirming with variations, the interim control order; or
17 (b) revoke the interim control order.
18 (2) On an application for a control order, the court may --
19 (a) make a control order under section 57; or
20 (b) dismiss the application.
21 (3) If the court considers it convenient and appropriate to do so, the
22 court may hear and determine, at the same time, 2 or more
23 applications to which this section applies against different
24 people, but separate control orders must be made with respect to
25 each person in relation to whom the court decides to make an
26 order.
27 (4) The Commissioner of Police and the person to whom the
28 application relates may appear at the hearing of the application
29 and make submissions in relation to the application.
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1 (5) The court may make a control order whether or not the person
2 to whom the application relates is present or makes submissions
3 at the hearing.
4 (6) In considering whether or not there are sufficient grounds to
5 make the control order, the court must take into account --
6 (a) if subsection (1) applies, the affidavit or affidavits that
7 accompanied the application for the interim control
8 order and verified the contents of the application; and
9 (b) if subsection (2) applies, the affidavit or affidavits that
10 accompanied the application for the control order and
11 verified the contents of the application; and
12 (c) the affidavit that accompanied the notice of objection (if
13 any); and
14 (d) any other information provided by the Commissioner of
15 Police, or the person to whom the application relates, at
16 the hearing.
17 57. Circumstances in which control order may be made
18 (1) The court may make a control order in relation to a person if the
19 court is satisfied --
20 (a) that there is a ground for making a control order in
21 relation to the person; and
22 (b) that it is appropriate in the circumstances to make the
23 order.
24 (2) Any of the following is a ground for making a control order in
25 relation to a person --
26 (a) that the person is a member of a declared criminal
27 organisation;
28 (b) that the person --
29 (i) is or purports to be a former member of an
30 organisation that is a declared criminal
31 organisation (whether or not the organisation was
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1 a declared criminal organisation at the time of
2 the person's former membership); but
3 (ii) has an ongoing involvement with the
4 organisation and its activities;
5 (c) that the person --
6 (i) engages in, or has engaged in, serious criminal
7 activity; and
8 (ii) regularly associates with members of a declared
9 criminal organisation.
10 (3) The court must have regard to the following in considering
11 whether or not to make a control order in relation to a person,
12 and if it does, in considering what conditions should be imposed
13 under the order --
14 (a) whether the person's behaviour, or history of behaviour,
15 suggests that there is a risk that the person will engage
16 in serious criminal activity;
17 (b) the extent to which the order might assist in preventing
18 the person from engaging in serious criminal activity;
19 (c) any criminal convictions that the person has;
20 (d) any criminal convictions of a person whose association
21 with the person is relied on in the application to support
22 the making of the order;
23 (e) any legitimate reason the person may have for
24 associating with any person specified in the application;
25 (f) anything else the court considers relevant.
26 (4) For the purpose of determining whether or not subsection (2)(b)
27 applies to a person, the court may take into account whether the
28 person regularly associates with members of the declared
29 criminal organisation without reasonable excuse, and the extent
30 to which the conduct of the person demonstrates that he or she
31 has genuinely dissociated himself or herself from the
32 organisation.
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1 58. Conditions of control order
2 (1) When the court makes a control order --
3 (a) the standard conditions apply under the order in
4 accordance with Division 5 Subdivision 1; and
5 (b) in addition, the court may impose any other conditions
6 the court considers appropriate.
7 (2) Without limiting subsection (1)(b), a condition may do any of
8 the following in relation to the person to whom the control order
9 relates --
10 (a) prohibit the person from carrying on one or more
11 prescribed activities specified in the order;
12 (b) prohibit the person from applying for or undertaking
13 employment of the kind specified in the order;
14 (c) prohibit the person from entering, or being on or near,
15 any premises or place specified in the order, or any class
16 of premises or place specified in the order;
17 (d) prohibit the person from possessing any of the
18 following --
19 (i) a firearm;
20 (ii) a weapon;
21 (iii) any substance or article that, under the
22 Dangerous Goods Safety Act 2004, is an
23 explosive;
24 (e) prohibit the person from possessing a substance, article
25 or thing specified in the order, or a substance, article or
26 thing of a class specified in the order, except as
27 permitted by the terms of the order;
28 (f) prohibit the person from accessing or using one or more
29 forms of communication or technology specified in the
30 order, or one or more forms of communication or
31 technology of a class specified in the order, except as
32 permitted by the terms of the order.
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1 (3) Any condition imposed by the court under subsection (1)(b)
2 may be absolute or subject to exceptions.
3 59. Consequential or ancillary orders
4 (1) On making a control order in relation to a person, the court may
5 make any consequential or ancillary orders it thinks fit.
6 (2) Without limiting subsection (1), the court may make any of the
7 following orders if, in the opinion of the court, the
8 circumstances of the case require --
9 (a) if the person satisfies the court that there is good reason
10 why he or she should be allowed to associate with a
11 particular controlled person, an order exempting the
12 person from the operation of section 77 to the extent,
13 and subject to the conditions, specified by the court;
14 (b) an order exempting the person from the operation of
15 section 80 for a period specified by the court, to enable
16 the person to organise his or her affairs;
17 (c) if, under section 58(2)(a), the order includes the
18 condition that the controlled person is prohibited from
19 carrying on a prescribed activity, an order requiring the
20 person to surrender, to a person and at a place and
21 within a period specified in the order, any authorisation
22 that the person has to carry on the prescribed activity.
23 (3) If the court imposes a requirement under an order made under
24 subsection (2)(c), it is a condition of the control order that the
25 controlled person comply with the requirement.
26 60. Form of control order
27 (1) A control order must --
28 (a) specify the person to whom it relates; and
29 (b) specify which provision of section 57(2) the order is
30 made under; and
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1 (c) identify the particular declared criminal organisation
2 that is the basis of the order by --
3 (i) identifying in the order, in accordance with the
4 court's findings in the proceedings, the declared
5 criminal organisation of which the person is a
6 member or former member or, as the case
7 requires, with whose members the person
8 regularly associates; and
9 (ii) stating the details of the declaration under which
10 that organisation is a declared criminal
11 organisation;
12 and
13 (d) include a statement of the grounds on which the order is
14 made, but must not contain information the disclosure of
15 which would be in breach of section 111; and
16 (e) set out the terms of the order, including any
17 non-standard conditions of the order and any
18 consequential or ancillary orders made under section 59;
19 and
20 (f) state that the names of persons who are controlled
21 persons are listed on the register kept under section 113;
22 and
23 (g) specify the date when the order is to expire, which must
24 not be later than 5 years after the date of the making of
25 the order; and
26 (h) set out an explanation of the circumstances in which the
27 order might cease to have effect under section 25(1);
28 and
29 (i) set out an explanation of the right of appeal under
30 section 64; and
31 (j) set out an explanation of the right to apply under
32 section 67 for the variation of the order; and
33 (k) set out an explanation of the right to apply under
34 section 70 for the revocation of the order.
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1 (2) A copy of the affidavit or affidavits referred to in
2 section 56(6)(a) or (b) (as the case requires) must be attached to
3 the order.
4 (3) Subsection (2) is subject to section 112.
5 61. Explanation of control order
6 (1) When the court makes a control order, and the person to whom
7 the order relates is present in court at the time, the court must
8 ensure that all reasonable steps are taken to give the person the
9 explanation set out in subsection (3).
10 (2) If the person is not present in court when the control order is
11 made, the Commissioner of Police must ensure that all
12 reasonable steps are taken to give the person the explanation set
13 out in subsection (3) when the person is served with a copy of
14 the order.
15 (3) The person must have explained to them, in language likely to
16 be understood by them --
17 (a) the person's obligations under the control order; and
18 (b) the consequences that may follow if the person fails to
19 comply with those obligations.
20 (4) The explanation must, so far as practicable, be given both orally
21 and in writing.
22 (5) Failure to comply with this section does not invalidate a control
23 order.
24 62. Commencement and duration of control order
25 (1) A control order comes into force as follows --
26 (a) when the order is made, if the person to whom the order
27 relates is present in court at the time;
28 (b) in any other case, when the person is served personally
29 with a copy of the order.
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1 (2) A control order remains in force until one of the following
2 occurs --
3 (a) the order expires;
4 (b) the order is revoked under section 71;
5 (c) the order ceases to have effect under section 25(1).
6 (3) Sections 43 and 44 apply with all necessary modifications in
7 relation to service of a copy of a control order on the person to
8 whom the order relates.
9 63. Successive control orders permitted
10 (1) The fact that a control order granted in relation to a person is
11 still in force, or has expired, does not prevent an interim control
12 order or another control order being made in relation to that
13 person.
14 (2) An application for a control order may be made and granted in
15 relation to a person or, as the case requires, an interim control
16 order may be made and granted in relation to a person, and a
17 control order confirming (or confirming with variations) that
18 interim control order can be made, while that person is already a
19 controlled person under a control order (the existing order),
20 but --
21 (a) the interim control order or control order (the new
22 order) cannot come into force until the existing order
23 expires; and
24 (b) the new order must state that it does not come into force
25 until the expiry of the existing order, and state the date
26 on which the existing order is to expire; and
27 (c) the new order comes into force as follows --
28 (i) if the controlled person is present in court when
29 the new order is made or the controlled person is
30 served personally with notice of, or a copy of,
31 the new order before the expiry of the existing
32 order, on the expiry of the existing order;
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1 (ii) in any other case, when notice of, or a copy of,
2 the new order is served personally on the person
3 to whom the new order relates.
4 (3) Subsection (2) overrides sections 45(1) and 62(1).
5 Subdivision 5 -- Appeals, variations and revocations
6 64. Appeal against making or refusal of control order
7 (1) The controlled person or the Commissioner of Police may
8 appeal to the Court of Appeal against a decision of the court in
9 relation to the making of a control order.
10 (2) An appeal lies --
11 (a) in all cases, on a question of law; and
12 (b) with the leave of the Court of Appeal, on a question of
13 fact or a question of mixed law and fact.
14 (3) An appeal on a question of law cannot be commenced later than
15 21 days after the date on which the decision of the court was
16 made, unless the Court of Appeal gives leave for the appeal to
17 be commenced after that time.
18 (4) An application for leave to appeal under subsection (2)(b)
19 cannot be made later than 21 days after the date on which the
20 decision of the court was made, unless the Court of Appeal
21 extends the time within which an application for leave to appeal
22 may be made.
23 (5) An extension of a time limit may be given under subsection (3)
24 or (4) even though the time limit has already passed.
25 65. Appeal does not stay order unless Court of Appeal orders
26 otherwise
27 An appeal or an application for leave to appeal under section 64
28 against a decision of the court in relation to the making of a
29 control order does not stay the operation of the order, unless the
30 Court of Appeal orders that it be stayed.
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1 66. Determination of appeal
2 On an appeal under section 64, the Court of Appeal --
3 (a) may confirm, vary or set aside the decision appealed
4 against; and
5 (b) may make any decision that the court could have made;
6 and
7 (c) if it sets aside the decision appealed against, may order
8 that the matter concerned be dealt with again; and
9 (d) may make any consequential or ancillary order.
10 67. Application to vary control order
11 (1) The controlled person or the Commissioner of Police may, at
12 any time while the control order remains in force, apply to the
13 court to vary the control order.
14 (2) The controlled person and the Commissioner of Police can each
15 make more than one application under this section to vary the
16 same control order, but --
17 (a) an application can be made by the controlled person
18 only with the leave of the court; and
19 (b) the court may grant leave only if it is satisfied that there
20 has been a substantial change in the relevant
21 circumstances since the control order was made or, as
22 the case requires, an application to vary the order was
23 last determined by the court.
24 (3) An application under this section --
25 (a) must state --
26 (i) the terms of the variation sought; and
27 (ii) the grounds on which the variation is sought; and
28 (iii) the information supporting those grounds;
29 and
30 (b) must be accompanied by any affidavit the applicant
31 intends to rely on at the hearing of the application.
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1 (4) If an application is made under this section --
2 (a) the controlled person and the Commissioner of Police
3 may appear at the hearing of the application and make
4 submissions in relation to the application; but
5 (b) the court may hear and determine the application
6 whether or not any of the persons who are entitled to be
7 present and make submissions at the hearing take
8 advantage of that opportunity.
9 68. Determination of application for variation
10 (1) On hearing an application under section 67 for the variation of a
11 control order, the court may --
12 (a) vary the control order, and for that purpose may exercise
13 any power that it could have exercised on the making of
14 the original control order; or
15 (b) dismiss the application.
16 (2) Before varying a control order under this section, the court must
17 have regard to the same factors that the court is required to have
18 regard to in considering whether or not to make a control order
19 and in considering the terms of a control order.
20 (3) The court may reduce, but not extend, the duration of a control
21 order under this section.
22 (4) If the court varies a control order under this section, the
23 variation takes effect --
24 (a) if the person to whom the order relates is present in
25 court at the time, when the variation is made; or
26 (b) in any other case, when notice of the variation is served
27 personally on that person.
28 (5) Sections 43 and 44 apply with all necessary modifications in
29 relation to service of notice of the variation of a control order on
30 the person to whom the order relates.
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1 69. Explanation of variation
2 (1) Section 61 applies with all necessary modifications in relation to
3 the variation of a control order under section 68, but only if the
4 variation changes the obligations imposed under the order on
5 the person to whom the order relates.
6 (2) Subsection (1) does not apply if the control order is varied on
7 the application of, and only in the terms sought by, the person to
8 whom the order relates.
9 70. Application for revocation of control order
10 (1) The Commissioner of Police or the controlled person may, at
11 any time while the control order remains in force, apply to the
12 court to revoke the control order.
13 (2) The Commissioner of Police and the controlled person can each
14 make more than one application under this section to revoke the
15 same control order, but --
16 (a) an application can be made by the controlled person
17 only with the leave of the court; and
18 (b) the court may grant leave only if it is satisfied that there
19 has been a substantial change in the relevant
20 circumstances since the control order was made or, as
21 the case requires, an application to revoke the order was
22 last determined by the court.
23 (3) An application under this section --
24 (a) must state --
25 (i) the grounds on which the revocation is sought;
26 and
27 (ii) the information supporting those grounds;
28 and
29 (b) must be accompanied by any affidavit the applicant
30 intends to rely on at the hearing of the application.
31 (4) If an application is made under this section --
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1 (a) the controlled person and the Commissioner of Police
2 may appear at the hearing of the application and make
3 submissions in relation to the application; but
4 (b) the court may hear and determine the application
5 whether or not any of the persons who are entitled to be
6 present and make submissions at the hearing take
7 advantage of that opportunity.
8 71. Determination of application for revocation
9 (1) On hearing an application under section 70 for the revocation of
10 a control order, the court may --
11 (a) by order, revoke the control order; or
12 (b) dismiss the application.
13 (2) Before revoking a control order under this section, the court
14 must have regard to the same factors that the court is required to
15 have regard to in considering whether or not to make a control
16 order and in considering the terms of a control order.
17 (3) A revocation order takes effect when it is made.
18 (4) Unless the controlled person is present in court when the
19 revocation order is made, the Commissioner of Police must
20 serve a copy of the revocation order personally on that person as
21 soon as practicable after the order is made.
22 (5) Section 44 applies with all necessary modifications in relation to
23 service of a copy of the revocation order on the person to whom
24 the control order related.
25 72. Notice of variation or revocation
26 A registrar of the court must give notice of the variation or
27 revocation of a control order --
28 (a) to the Commissioner of Police, if the Commissioner or
29 his or her representative is not present in court when the
30 order is varied or revoked; and
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1 (b) if the registrar is aware that the control order has effect
2 under the law of another State or a Territory, to the
3 commissioner (by whatever name called) of the police
4 force or police service of that State or Territory.
5 Division 4 -- Orders against persons under 18
6 73. Orders available against 16 and 17 year olds
7 (1) This Act applies in relation to persons who have reached
8 16 years of age but are under 18 years of age (juveniles) in the
9 same way that it applies to persons who have reached 18 years
10 of age.
11 (2) Neither an interim control order nor a control order can be made
12 in relation to a person who is under 16 years of age.
13 74. Notification of orders against juveniles
14 If an interim control order or a control order is made in relation
15 to a juvenile, or an interim control order or a control order made
16 in relation to a juvenile is varied or revoked, the Commissioner
17 of Police must, as soon as reasonably practicable, give a copy of
18 the order or, as the case requires, the notice of the variation or
19 the revocation order to --
20 (a) the chief executive officer of the department of the
21 Public Service principally assisting the Minister in the
22 administration of the Children and Community Services
23 Act 2004; and
24 (b) a parent or guardian of the juvenile, if the Commissioner
25 of Police is able to find a parent or guardian of the
26 juvenile after making reasonable attempts.
27 75. Personal service of orders against juveniles required
28 (1) An interim control order made in relation to a juvenile is of no
29 effect until notice of the order is served personally on the
30 juvenile.
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1 (2) A control order made in relation to a juvenile is of no effect
2 until a copy of the order is served personally on the juvenile,
3 unless the juvenile is present in court at the time the order is
4 made.
5 (3) A variation of a control order or an interim control order made
6 in relation to a juvenile is of no effect until notice of the
7 variation is served personally on the juvenile, unless the
8 juvenile is present in court at the time the court varies the order.
9 (4) Subsections (1) to (3) apply despite any other provision of this
10 Act permitting any form of service other than personal service.
11 76. Application of certain Acts relating to persons under 18 not
12 affected
13 This Division does not affect the application of the Children's
14 Court of Western Australia Act 1988 or the Young Offenders
15 Act 1994 in relation to any offence or alleged offence under a
16 provision of this Act.
17 Division 5 -- Effect of orders
18 Subdivision 1 -- Standard conditions
19 77. Standard condition: non-association with other controlled
20 persons
21 (1) A controlled person under an interim control order must not
22 associate with any other controlled person, except --
23 (a) as permitted by section 100(1); or
24 (b) as permitted by the terms of an exemption under
25 section 59.
26 (2) A controlled person under a control order must not associate
27 with any other controlled person, except as permitted by the
28 terms of an exemption under section 59.
29 (3) A breach of this condition is an offence under section 99.
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1 78. Other standard conditions
2 (1) A controlled person under an interim control order or a control
3 order must not do any of the following --
4 (a) receive funds from, make funds available to, or collect
5 funds for or on behalf of, a declared criminal
6 organisation;
7 (b) be involved in the organisation, running or financing of
8 any event that is open to the public (whether or not a
9 charge is made or payment for admittance is required);
10 (c) recruit a person to become a member of a declared
11 criminal organisation.
12 (2) A breach of --
13 (a) the condition specified in subsection (1)(a) is an offence
14 under section 102;
15 (b) the condition specified in subsection (1)(b) is an offence
16 under section 103;
17 (c) the condition specified in subsection (1)(c) is an offence
18 under section 106.
19 Subdivision 2 -- Non-standard conditions
20 79. Non-standard conditions
21 (1) A controlled person under an interim control order or a control
22 order must not do any of the following in breach of a condition
23 of the order --
24 (a) carry on any prescribed activity specified in the order;
25 (b) apply for or undertake any employment of the kind
26 specified in the order;
27 (c) enter, or be on or near, any premises or place specified
28 in the order, or any class of premises or place specified
29 in the order;
30 (d) possess any of the following --
31 (i) a firearm;
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1 (ii) a weapon;
2 (iii) any substance or article that, under the
3 Dangerous Goods Safety Act 2004, is an
4 explosive;
5 (e) possess a substance, article or thing specified in the
6 order, or a substance, article or thing of a class specified
7 in the order, except as permitted by the terms of the
8 order;
9 (f) access or use one or more forms of communication or
10 technology specified in the order, or one or more forms
11 of communication or technology of a class specified in
12 the order, except as permitted by the terms of the order;
13 (g) do anything else that is prohibited by a condition of the
14 order imposed under section 58 or applying under
15 section 82;
16 (h) fail to comply with a condition of the order imposed
17 under section 58 or applying under section 59(3) or 82.
18 (2) A breach of any of the conditions specified in subsection (1) is
19 an offence under section 103.
20 80. Condition prohibiting controlled person from carrying on
21 prescribed activity
22 (1) In this section --
23 prescribed activity means any of the following --
24 (a) any activity that requires a licence, approval or permit
25 under the Betting Control Act 1954;
26 (b) being a casino key employee or casino employee as
27 defined in the Casino Control Act 1984 section 3(1);
28 (c) any activity that requires a Dealer's Licence, Repairer's
29 Licence, Manufacturer's Licence or Shooting Gallery
30 Licence under the Firearms Act 1973;
31 (d) any activity that requires a licence, approval or permit
32 under the Liquor Control Act 1988;
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1 (e) any activity required to be licensed or authorised under
2 the Motor Vehicle Dealers Act 1973;
3 (f) any activity that requires a business licence or a
4 repairer's certificate under the Motor Vehicle Repairers
5 Act 2003;
6 (g) being a pawnbroker or second-hand dealer as defined in
7 the Pawnbrokers and Second-hand Dealers Act 1994;
8 (h) the activities of an owner, trainer, jockey, apprentice
9 jockey, track work rider, driver of harness racing horses
10 or another person associated with racing who is required
11 to be licensed under the Racing and Wagering Western
12 Australia Act 2003;
13 (i) operating a tow truck in circumstances where the tow
14 truck is required to be licensed under regulations made
15 under the Road Traffic Act 1974;
16 (j) any activity required to be licensed or authorised under
17 the Security and Related Activities (Control) Act 1996;
18 (k) any other occupation or activity (including an
19 occupation or activity under a written law mentioned in
20 paragraphs (a) to (j)) --
21 (i) that can be lawfully carried on only under an
22 authorisation; and
23 (ii) that is prescribed by the regulations for the
24 purposes of this definition.
25 (2) This section applies if, under section 58(2)(a), an interim control
26 order or a control order includes the condition that the
27 controlled person is prohibited from carrying on one or more
28 prescribed activities.
29 (3) If this section applies --
30 (a) the controlled person must not carry on the prescribed
31 activity while the interim control order or control order
32 remains in force; and
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1 (b) any authorisation that the controlled person has to carry
2 on the prescribed activity --
3 (i) is automatically suspended when the interim
4 control order or control order comes into force;
5 and
6 (ii) remains suspended until the interim control order
7 or control order ceases to be in force or the
8 authorisation ceases for any reason to be in force
9 at an earlier date;
10 and
11 (c) while the interim control order or control order is in
12 force, the controlled person must not apply for, or
13 continue with any existing application for, any
14 authorisation to carry on the prescribed activity; and
15 (d) any existing application for an authorisation to carry on
16 the prescribed activity --
17 (i) is automatically suspended when the interim
18 control order or control order comes into force;
19 and
20 (ii) remains suspended until the interim control order
21 or control order ceases to be in force or the
22 application lapses for any reason at an earlier
23 date.
24 (4) The suspension of an authorisation or an application for an
25 authorisation in accordance with this section takes effect --
26 (a) even if the written law under which the authorisation
27 was obtained or the application was made does not
28 provide for suspension of the authorisation or
29 application, or provides a specific procedure for
30 suspension of the authorisation or application; and
31 (b) even if, in the case of an application for an authorisation,
32 the written law under which the application was
33 made --
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1 (i) requires a regulatory authority to deal with the
2 application; or
3 (ii) provides that an authorisation is granted as a
4 matter of course on the making of the application
5 or if certain requirements or conditions are
6 satisfied or certain circumstances exist;
7 and
8 (c) regardless of any other written law, award or industrial
9 or other agreement affecting the employment of the
10 person holding the authorisation or making the
11 application.
12 (5) If a controlled person holds an authorisation, or has made an
13 application for an authorisation, jointly with any other person
14 who is not subject to an interim control order or a control order
15 to which this section applies, the authorisation or application is
16 suspended only to the extent that it is held or made by the
17 controlled person.
18 (5A) If an interim control order is varied under section 50, or a
19 control order is varied under section 66 or 68, and the effect of
20 the variation is to include or remove a condition that the
21 controlled person is prohibited from carrying on a prescribed
22 activity, then this section applies as follows --
23 (a) if the effect of the variation is to include that
24 condition --
25 (i) the prohibition on the controlled person carrying
26 on the prescribed activity takes effect when the
27 variation takes effect; and
28 (ii) the suspension of an authorisation or an
29 application for an authorisation in relation to the
30 prescribed activity takes effect when the
31 variation takes effect; and
32 (iii) the prohibition on the controlled person applying
33 for, or continuing with any existing application
34 for, any authorisation to carry on the prescribed
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1 activity takes effect when the variation takes
2 effect;
3 (b) if the effect of the variation is to remove that
4 condition --
5 (i) the prohibition on the controlled person carrying
6 on the prescribed activity ceases when the
7 variation takes effect; and
8 (ii) the suspension of an authorisation or an
9 application for an authorisation in relation to the
10 prescribed activity ceases when the variation
11 takes effect; and
12 (iii) the prohibition on the controlled person applying
13 for, or continuing with any existing application
14 for, any authorisation to carry on the prescribed
15 activity ceases when the variation takes effect.
16 (6) Neither the State nor any regulatory authority that grants an
17 authorisation incurs any liability because of the suspension of an
18 authorisation or an application for an authorisation under this
19 section.
20 81. Commissioner of Police to notify regulatory authority of
21 suspension of authorisation or application
22 (1) If an authorisation that a controlled person has to carry on a
23 prescribed activity, or an application by a controlled person for
24 such an authorisation, is suspended under section 80, the
25 Commissioner of Police must, as soon as practicable, notify the
26 relevant regulatory authority of the suspension.
27 (2) The regulations may provide for the giving of notifications
28 under this section, including (without limitation) provision for
29 the use of a prescribed form.
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1 Subdivision 3 -- Surrender and seizure of things
2 82. Surrendering things that cannot be possessed under order
3 (1) If an interim control order or a control order prohibits the person
4 to whom the order relates from possessing any substance, article
5 or thing (a prohibited item), it is a condition of the order that the
6 person must, within 24 hours after the order comes into force,
7 deliver the prohibited item to the custody of the Commissioner
8 of Police at a place specified in the order.
9 (2) The person is taken to have complied with the condition
10 referred to in subsection (1) if he or she lawfully disposes of
11 possession of the prohibited item before the expiry of the period
12 referred to in that subsection.
13 (3) If an interim control order or a control order prohibits the person
14 to whom the order relates from possessing a firearm, then
15 (without limiting subsection (1)) it is a condition of the order
16 that the person --
17 (a) is prohibited from possessing or obtaining a firearms
18 licence; and
19 (b) must, within 24 hours after the order comes into force,
20 deliver to the custody of the Commissioner of Police at a
21 police station all firearms licences held by the person.
22 (4) If an interim control order or a control order prohibits the person
23 to whom the order relates from possessing a prohibited item,
24 and any authorisation (other than a firearms licence) is required
25 to possess that item, then (without limiting subsection (1)) it is a
26 condition of the order that the person --
27 (a) is prohibited from possessing or obtaining an
28 authorisation to possess that item; and
29 (b) must, within 24 hours after the order comes into force,
30 deliver to the custody of the Commissioner of Police at a
31 police station all authorisations held by the person with
32 respect to the item.
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1 (5) If an interim control order is varied under section 50, or a
2 control order is varied under section 66 or 68, and the effect of
3 the variation is to include a prohibition of the kind referred to in
4 subsection (1), this section applies to that interim control order
5 or control order as if the references in subsections (1), (3)(b)
6 and (4)(b) to the period of 24 hours after the order comes into
7 force were references to the period of 24 hours after the
8 variation takes effect.
9 83. Seizure of things not surrendered
10 (1) This section applies if a person to whom an interim control
11 order or a control order relates does not comply with --
12 (a) a requirement under section 82 to surrender a prohibited
13 item, firearms licence or authorisation; or
14 (b) a requirement under an order made under
15 section 59(2)(c) to surrender an authorisation that the
16 person has to carry on a prescribed activity.
17 (2) If this section applies, a police officer may, without warrant,
18 enter a place and search for and seize a prohibited item, firearms
19 licence or authorisation if the police officer suspects on
20 reasonable grounds that --
21 (a) the person to whom the interim control order or control
22 order relates has a prohibited item, firearms licence or
23 authorisation in his or her possession; and
24 (b) the prohibited item, firearms licence or authorisation is
25 in that place.
26 (3) This section does not limit the provision of any other written
27 law under which a police officer or any other person may, with
28 or without warrant, exercise any power of search, entry or
29 seizure, including (without limitation) --
30 (a) the Firearms Act 1973 section 26(1);
31 (b) the Weapons Act 1999 sections 13 and 14;
32 (c) the Dangerous Goods Safety Act 2004 sections 37
33 and 45;
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1 (d) the Criminal Investigation Act 2006.
2 84. Dealing with things surrendered or seized: firearms,
3 firearms licences and weapons
4 (1) If a firearm or weapon is surrendered under section 82 or seized
5 under section 83 --
6 (a) the firearm or weapon is forfeited to the State; and
7 (b) the Criminal and Found Property Disposal Act 2006
8 applies to and in relation to the firearm or weapon as
9 if --
10 (i) the firearm or weapon were property that has
11 been seized in the course of a criminal
12 investigation and has become forfeited property
13 within the meaning of that Act; and
14 (ii) the interim control order or control order that
15 prohibits the controlled person to whom the
16 order relates from possessing the firearm or
17 weapon were an order that ordered the forfeiture
18 of the firearm or weapon to the State.
19 (2) If a firearms licence is surrendered under section 82 or seized
20 under section 83 --
21 (a) the Commissioner of Police must destroy the licence as
22 soon as practicable; and
23 (b) the destruction of the licence is to be treated as a
24 cancellation of the licence under the Firearms Act 1973
25 section 20(4).
26 (3) However, the Commissioner of Police must not exercise the
27 powers in subsection (1) or (2) in relation to the surrendered or
28 seized firearm, firearms licence or weapon --
29 (a) if the surrender or seizure is by virtue of an interim
30 control order, before a control order confirming the
31 interim control order is made; and
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1 (b) if a control order confirming the interim control order is
2 made, or if the surrender or seizure is by virtue of a
3 control order, before the expiration of the time allowed
4 for appealing against the control order or, if an appeal is
5 lodged within that time, before the appeal is concluded.
6 (4) If any of the things set out in subsection (5) (a relevant event)
7 occurs --
8 (a) the Commissioner of Police must hold the surrendered
9 or seized firearm, firearms licence or weapon in safe
10 custody until it is reclaimed by the person lawfully
11 entitled to possess it or it may be otherwise lawfully
12 disposed of, whichever occurs first; and
13 (b) the person lawfully entitled to possess the firearm,
14 firearms licence or weapon may reclaim it from the
15 Commissioner of Police, unless it has been sooner
16 lawfully disposed of; and
17 (c) if the firearm, firearms licence or weapon is not
18 reclaimed within one month after the relevant event
19 occurs, the Commissioner of Police may --
20 (i) in the case of a firearm, dispose of the firearm
21 under the Firearms Act 1973 section 33 as if the
22 owner of the firearm cannot be found; or
23 (ii) in the case of a firearms licence, exercise the
24 power in subsection (2); or
25 (iii) in the case of a weapon, make a direction under
26 the Weapons Act 1999 section 18(1) as if the
27 weapon had been forfeited to the State under that
28 Act.
29 (5) The following are the relevant events referred to in
30 subsection (4) --
31 (a) in the case of an interim control order --
32 (i) the order is varied to remove the firearms
33 condition or, as the case requires, the condition
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1 prohibiting the person to whom the order relates
2 from possessing a weapon;
3 (ii) the application for a control order confirming the
4 interim control order is withdrawn or dismissed;
5 (iii) the interim control order is revoked under section
6 47(2)(a) or 56(1)(b);
7 (iv) the interim control order ceases to have effect
8 under section 25(1);
9 (b) in the case of a control order, on an appeal under
10 section 64 --
11 (i) the decision of the court to make the order is
12 reversed; or
13 (ii) the order is varied under section 66 to remove
14 the firearms condition or, as the case requires,
15 the condition prohibiting the person to whom the
16 order relates from possessing a weapon.
17 85. Dealing with things surrendered or seized: other things
18 (1) If an authorisation (other than a firearms licence or an
19 authorisation to which an order made under section 59(2)(c)
20 applies) is surrendered under section 82 or seized under
21 section 83 --
22 (a) the Commissioner of Police must hold the authorisation
23 in safe custody until it is reclaimed by the holder of the
24 authorisation or it may be otherwise lawfully disposed
25 of, whichever occurs first; and
26 (b) when the relevant interim control order or control order
27 ceases to be in force, the holder of the authorisation may
28 reclaim it from the Commissioner of Police, unless it has
29 been sooner lawfully disposed of; and
30 (c) if the authorisation is not reclaimed within one month
31 after the relevant interim control order or control order
32 ceases to be in force, the Commissioner of Police must
33 destroy the authorisation as soon as practicable.
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1 (2) The destruction of an authorisation under subsection (1)(c) has
2 no effect on the validity of the authorisation.
3 (3) If an authorisation to which an order made under
4 section 59(2)(c) applies is seized under section 83, the
5 Commissioner of Police must deliver the authorisation to the
6 person to whom the order requires it to be surrendered.
7 (4) Where neither section 84 nor subsection (1) or (3) apply to a
8 thing surrendered under section 82 or seized under section 83 --
9 (a) the Criminal and Found Property Disposal Act 2006
10 applies to and in relation to the thing --
11 (i) as if it were property seized in the course of a
12 criminal investigation; and
13 (ii) on the basis that the Commissioner of Police is
14 authorised to retain the thing until the relevant
15 interim control order or control order ceases to
16 be in force or the thing may be otherwise
17 lawfully disposed of, whichever occurs first;
18 and
19 (b) if the thing is likely to perish while it is being retained
20 by the Commissioner of Police, or would be dangerous
21 to retain, the Commissioner of Police may deal with the
22 thing under section 17 of that Act as if it were held
23 property that is not wholly prohibited property.
24 (5) If an interim control order is varied under section 50, or a
25 control order is varied under section 66 or 68, and the effect of
26 the variation is to remove a prohibition of the kind referred to in
27 section 82(1), this section applies as if the references in
28 subsection (1)(b) and (c) and (4)(a)(ii) to the relevant interim
29 control order or control order ceasing to be in force were
30 references to the prohibition ceasing to have effect.
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1 86. Other written laws providing for disposal of surrendered or
2 seized property not affected
3 Sections 84 and 85 do not affect the operation of --
4 (a) the Criminal Property Confiscation Act 2000; or
5 (b) any other written law under which property that is
6 surrendered under section 82 or seized under section 83
7 may be forfeited to the State.
8 Subdivision 4 -- Requirements to provide identifying particulars
9 87. Term used: identifying particular
10 In this Subdivision --
11 identifying particular has the meaning given in the Criminal
12 Investigation (Identifying People) Act 2002 section 3(1).
13 88. Identifying particulars may be taken under Criminal
14 Investigation (Identifying People) Act 2002
15 (1) If an interim control order or a control order is in force in
16 relation to a person, then --
17 (a) for the purposes of the Criminal Investigation
18 (Identifying People) Act 2002 Part 7 and section 67(1)(a)
19 and (b), the controlled person is taken to be a charged
20 suspect charged with a serious offence (as defined in
21 section 3(1) of that Act); and
22 (b) that Act applies accordingly with any necessary
23 modifications.
24 (2) Subsection (1) is subject to sections 89 to 91.
25 89. Power to take identifying particulars exercisable once only
26 The power to take identifying particulars under section 88
27 cannot be exercised more than once in respect of the same
28 interim control order or control order, and for the purposes of
29 this section an interim control order and a control order
page 70
Criminal Organisations Control Bill 2011
Control orders Part 3
Effect of orders Division 5
s. 90
1 confirming that interim control order are to be treated as the
2 same order.
3 90. Retention and use of identifying particulars taken
4 (1) The Commissioner of Police may retain for law enforcement,
5 crime prevention or community protection purposes any
6 identifying particulars (other than a DNA profile and material
7 from which to obtain the DNA profile of a person) taken under
8 section 88.
9 (2) The Criminal Investigation (Identifying People) Act 2002
10 section 73 applies to and in respect of a DNA profile, and
11 material from which to obtain the DNA profile of a person,
12 taken under section 88.
13 (3) Identifying particulars taken under section 88 must be destroyed
14 in the circumstances set out in section 91.
15 91. Disposal of identifying particulars taken
16 (1) Identifying particulars taken from a controlled person under
17 section 88 must be destroyed --
18 (a) in any case where the particulars were taken when an
19 interim control order was in force in respect of the
20 person, if --
21 (i) the application for a control order confirming the
22 interim control order is withdrawn or dismissed;
23 or
24 (ii) the interim control order is revoked under
25 section 47(2)(a) or 56(1)(b); or
26 (iii) the interim control order ceases to have effect
27 under section 25(1); or
28 (iv) a control order confirming the interim control
29 order is made, but the decision of the court to
30 make the order is reversed on an appeal under
31 section 64;
page 71
Criminal Organisations Control Bill 2011
Part 3 Control orders
Division 5 Effect of orders
s. 92
1 (b) in any case where the particulars were taken when a
2 control order was in force in respect of the person, if the
3 decision of the court to make the order is reversed on an
4 appeal under section 64.
5 (2) The Criminal Investigation (Identifying People) Act 2002
6 applies in respect of identifying particulars that are required to
7 be destroyed under this section as if Part 9 of that Act required
8 the identifying particulars to be destroyed.
9 92. Power of police officers to request disclosure of identity
10 (1) A police officer who has reasonable cause to suspect that a
11 person is a controlled person who is associating with another
12 controlled person may require the person to disclose his or her
13 personal details.
14 (2) If a police officer has reasonable cause to suspect that a personal
15 detail given by a person in response to a requirement under
16 subsection (1) is false, the officer may require the person to
17 produce evidence of the correctness of the detail.
18 (3) Section 104 makes a refusal or failure to comply with a
19 requirement under subsection (1) or (2) and giving false
20 particulars in response to a requirement an offence.
21 Subdivision 5 -- Notification of order where possession of
22 firearms prohibited
23 93. Inquiries about use of, or access to, firearms
24 (1) A person who personally serves notice of an interim control
25 order, or a copy of a control order, on a controlled person must,
26 if that order contains a firearms condition --
27 (a) ask the controlled person --
28 (i) whether the person uses or has access to any
29 firearms in the course of the controlled person's
30 usual occupation; and
page 72
Criminal Organisations Control Bill 2011
Control orders Part 3
Effect of orders Division 5
s. 93
1 (ii) if so, the name and business address of the
2 responsible person; and
3 (iii) whether the person and another person (the
4 co-licensee) hold firearms licenses in respect of
5 the same firearm; and
6 (iv) if so, the name and address of the co-licensee;
7 and
8 (b) make a written record of the responses given by the
9 controlled person to those questions; and
10 (c) tell the controlled person that the responsible person or
11 the co-licensee (or both, as the case requires) will be
12 notified that the interim control order or, as the case
13 requires, the control order has been made.
14 (2) If the controlled person is present in court when the interim
15 control order or control order is made, the court must --
16 (a) do the things set out in subsection (1)(a) to (c); and
17 (b) ensure that the written record required by
18 subsection (1)(b) is sent without delay to the
19 Commissioner of Police.
20 (3) If an interim control order is varied under section 50, or a
21 control order is varied under section 66 or 68, and the effect of
22 the variation is to include a firearms condition, this section
23 applies as if --
24 (a) the reference in subsection (1) to the personal service of
25 notice of an interim control order or a copy of a control
26 order were a reference to the personal service of notice
27 of the variation; and
28 (b) the reference in subsection (2) to the making of an
29 interim control order or a control order were a reference
30 to the varying of an interim control order or a control
31 order.
page 73
Criminal Organisations Control Bill 2011
Part 3 Control orders
Division 5 Effect of orders
s. 94
1 (4) Section 105 makes a failure to answer a question asked under
2 subsection (1) or (2), and giving a false answer to a question
3 asked under either of those subsections, an offence.
4 94. Commissioner of Police to notify order to responsible person
5 and co-licensee
6 (1) If a written record made under section 93(1) or (2) indicates that
7 a controlled person uses or has access to a firearm in the course
8 of the controlled person's usual occupation or holds a firearms
9 licence in respect of a firearm for which a co-licensee also holds
10 a firearms licence, the Commissioner of Police must promptly
11 notify the responsible person or co-licensee, as the case
12 requires --
13 (a) that an interim control order or, as the case requires, a
14 control order has been made against the controlled
15 person; and
16 (b) that the order prohibits the controlled person from
17 possessing a firearm; and
18 (c) either --
19 (i) in the case of a control order, of the duration of
20 the order and the possibility of it being renewed;
21 or
22 (ii) in the case of an interim control order, that the
23 order remains in force until a control order is
24 made confirming the interim control order, but
25 may cease to have effect in certain
26 circumstances;
27 and
28 (d) that it is an offence for the responsible person or
29 co-licensee to allow the controlled person to use or have
30 access to a firearm.
31 (2) Section 108 makes it an offence for a responsible person or
32 co-licensee who is notified under this section to allow a
33 controlled person to use or have access to a firearm.
page 74
Criminal Organisations Control Bill 2011
Control orders Part 3
General Division 6
s. 95
1 Division 6 -- General
2 95. Orders only available against individuals
3 An interim control order or a control order can only be made in
4 relation to an individual.
5 96. Order prohibiting entry to premises or place
6 An interim control order or a control order may prohibit a
7 person from entering or remaining in any premises or place, or
8 restrict a person's access to any premises or place, even if the
9 person has a legal or equitable right to be at the premises or
10 place.
11 97. Correcting minor errors in orders
12 (1) In this section --
13 relevant order means --
14 (a) an interim control order; or
15 (b) a control order; or
16 (c) an order made under section 59.
17 (2) This section applies if a relevant order contains --
18 (a) a clerical mistake; or
19 (b) an error arising from an accidental slip or omission; or
20 (c) a material mistake in the description of any person, thing
21 or matter referred to in the order.
22 (3) If this section applies --
23 (a) a registrar may correct the relevant order; or
24 (b) the court, on an application by or on behalf of the
25 Commissioner of Police or the controlled person, may
26 make an order correcting the relevant order.
27 (4) Subsection (3) does not apply if the correction would adversely
28 affect the interests of the public or the controlled person.
page 75
Criminal Organisations Control Bill 2011
Part 3 Control orders
Division 6 General
s. 98
1 (5) If a relevant order is corrected under this section, the registrar
2 must ensure that the Commissioner of Police and the controlled
3 person are notified of the correction.
4 98. Relationship with other laws
5 (1) In this section --
6 family order has the meaning given in the Restraining Orders
7 Act 1997 section 5;
8 prohibition order has the meaning given in the Community
9 Protection (Offender Reporting) Act 2004 section 85;
10 restraining order --
11 (a) has the meaning given in the Restraining Orders
12 Act 1997 section 3; and
13 (b) includes a police order as defined in section 3 of that
14 Act.
15 (2) If an interim control order or a control order is inconsistent with
16 a family order or a prohibition order or a restraining order, the
17 family order or prohibition order or restraining order prevails,
18 and the interim control order or control order has no effect to
19 the extent of the inconsistency.
20 (3) Subsection (2) applies whether the interim control order or
21 control order was made before or after the family order or
22 prohibition order or restraining order.
23 (4) For the purposes of subsection (2), an interim control order or a
24 control order is not inconsistent with another order merely
25 because the interim control order or control order imposes a
26 longer term in relation to any prohibited conduct than was
27 imposed by the other order.
page 76
Criminal Organisations Control Bill 2011
Offences Part 4
Offences by controlled persons Division 1
s. 99
1 Part 4 -- Offences
2 Division 1 -- Offences by controlled persons
3 Subdivision 1 -- Non-association offences
4 99. Association between controlled persons an offence
5 (1) A controlled person who associates with another controlled
6 person commits an offence.
7 Penalty:
8 (a) for a first offence, imprisonment for 2 years;
9 (b) for a second or subsequent offence committed after
10 conviction for a first offence, imprisonment for
11 5 years.
12 Summary conviction penalty for a second or subsequent
13 offence: imprisonment for 3 years.
14 (2) An offence under subsection (1) to which paragraph (b) of the
15 penalty for that offence applies is an indictable offence.
16 (3) A controlled person who, at any time within a period of
17 3 months, associates with another controlled person on 3 or
18 more occasions commits an offence.
19 Penalty: imprisonment for 3 years.
20 (4) For the purposes of subsections (1) and (3), it does not matter --
21 (a) whether the association was with the same controlled
22 person on each occasion or with a different controlled
23 person on each or some of the occasions; or
24 (b) when or on what grounds each of the persons became a
25 controlled person; or
26 (c) if the persons are members or former members of a
27 declared criminal organisation, whether they are
28 members or former members of the same declared
29 criminal organisation or different declared criminal
30 organisations.
page 77
Criminal Organisations Control Bill 2011
Part 4 Offences
Division 1 Offences by controlled persons
s. 100
1 (5) In proceedings for an offence under subsection (1) or (3), the
2 prosecution does not have to prove --
3 (a) that the accused associated with another person for any
4 particular purpose; or
5 (b) that the association would have led to the commission of
6 any offence.
7 100. Defences to charges under section 99
8 (1) For the purposes of the application of section 99(1) and (3) to an
9 accused to whom an interim control order relates, the forms of
10 association set out in section 101 are to be disregarded if the
11 accused proves that the association was reasonable in the
12 circumstances.
13 (2) It is a defence to a charge under section 99(1) or (3) for the
14 accused to establish that he or she did not know, and could not
15 reasonably be expected to have known, that the other person
16 with whom he or she associated was a controlled person.
17 (3) It is a defence to a charge under section 99(1) or (3) for the
18 accused to establish that the association was in accordance with
19 the terms of an exemption under section 59.
20 101. Certain associations to be disregarded for interim control
21 orders
22 The following are the forms of association referred to in
23 section 100(1) --
24 (a) associations between close family members;
25 (b) associations occurring in the course of a lawful
26 occupation or business or lawful political protest or
27 lawful industrial action;
28 (c) associations occurring at a course of training or
29 education between persons enrolled in the course;
30 (d) associations occurring at a rehabilitation, counselling or
31 therapy session;
32 (e) associations occurring in lawful custody;
page 78
Criminal Organisations Control Bill 2011
Offences Part 4
Offences by controlled persons Division 1
s. 102
1 (f) associations occurring in connection with the taking or
2 defending of legal proceedings (whether civil or
3 criminal);
4 (g) associations occurring in the course of complying with a
5 court order;
6 (h) other associations of a kind prescribed by the
7 regulations.
8 Subdivision 2 -- Financing offence
9 102. Offence for controlled person to get funds to, from or for
10 declared criminal organisation
11 (1) A controlled person commits an offence if the person --
12 (a) receives funds from, or makes funds available to, a
13 declared criminal organisation (whether directly or
14 indirectly); or
15 (b) collects funds for, or on behalf of, a declared criminal
16 organisation (whether directly or indirectly).
17 Penalty: imprisonment for 5 years.
18 Summary conviction penalty: imprisonment for 3 years.
19 (2) An offence under subsection (1) is an indictable offence.
20 (3) For the purposes of subsection (1), it does not matter whether
21 the controlled person is or is not a member or former member of
22 the declared criminal organisation.
23 Subdivision 3 -- Other offences by controlled persons
24 103. Other contravention of interim control order or control
25 order
26 (1) In this section --
27 engage in conduct means --
28 (a) to do an act; or
29 (b) to omit to do an act.
page 79
Criminal Organisations Control Bill 2011
Part 4 Offences
Division 1 Offences by controlled persons
s. 104
1 (2) A controlled person commits an offence if he or she engages in
2 conduct that contravenes an interim control order or a control
3 order relating to that person.
4 Penalty: imprisonment for 2 years.
5 (3) This section does not apply to conduct that constitutes an
6 offence under section 99 or 102 or 106.
7 104. Failure to disclose identity or giving false particulars
8 (1) A person who is required by a police officer in accordance with
9 section 43(1) or 92(1) to disclose his or her personal details
10 must not, without reasonable excuse, fail or refuse to comply
11 with the requirement.
12 Penalty: imprisonment for 12 months.
13 (2) A person who is required by a police officer in accordance with
14 section 43(2) or 92(2) to produce evidence of the correctness of
15 a personal detail must not, without reasonable excuse, fail or
16 refuse to comply with the requirement.
17 Penalty: imprisonment for 12 months.
18 (3) A person must not, without reasonable excuse, in response to a
19 requirement made by a police officer in accordance with
20 section 43(1) or 92(1), give any personal detail that is false in a
21 material particular.
22 Penalty: imprisonment for 12 months.
23 (4) A person must not, in response to a requirement made by a
24 police officer in accordance with section 43(2) or 92(2),
25 produce any false evidence.
26 Penalty: imprisonment for 12 months.
page 80
Criminal Organisations Control Bill 2011
Offences Part 4
Other offences Division 2
s. 105
1 105. Failure to disclose information or giving false information
2 about use of or access to firearms
3 (1) A person who is required by a person or the court in accordance
4 with section 93 to answer a question must not, without
5 reasonable excuse, fail or refuse to answer the question.
6 Penalty: imprisonment for 12 months.
7 (2) A person must not, without reasonable excuse, in response to a
8 question asked by a person or the court in accordance with
9 section 93, give an answer that is false in a material particular.
10 Penalty: imprisonment for 12 months.
11 (3) Nothing in subsection (1) or (2) prevents a person from being
12 dealt with for contempt of court for failing or refusing to answer
13 a question, or for giving an answer that is false in a material
14 particular, but the person is not liable to be punished twice.
15 Division 2 -- Other offences
16 106. Recruiting members for declared criminal organisation an
17 offence
18 (1) A person who recruits another person to become a member of a
19 declared criminal organisation commits an offence.
20 Penalty:
21 (a) for an individual, imprisonment for 5 years;
22 (b) for a body corporate, a fine of $50 000.
23 Summary conviction penalty:
24 (a) for an individual, imprisonment for 3 years;
25 (b) for a body corporate, a fine of $30 000.
26 (2) An offence under subsection (1) is an indictable offence.
27 (3) For the purposes of subsection (1), it does not matter whether
28 the person who recruited the other person --
29 (a) is or is not a controlled person; or
page 81
Criminal Organisations Control Bill 2011
Part 4 Offences
Division 2 Other offences
s. 107
1 (b) is or is not a member or former member of the declared
2 criminal organisation.
3 107. Permitting premises to be habitually used as place of resort
4 by members of declared criminal organisation
5 (1) In this section --
6 owner, in relation to any premises, includes --
7 (a) the person entitled to receive the rent of those premises;
8 and
9 (b) the person to whom the rent of those premises is paid.
10 (2) A person who is the owner, occupier or lessee of any premises
11 must not knowingly permit those premises to be habitually used
12 as a place of resort by members of a declared criminal
13 organisation.
14 Penalty: imprisonment for 2 years.
15 (3) A person must not be knowingly concerned in the management
16 of any premises habitually used as a place of resort by members
17 of a declared criminal organisation.
18 Penalty: imprisonment for 2 years.
19 (4) In proceedings for an offence under subsection (2), a person
20 who is the owner, occupier or lessee of any premises habitually
21 used as a place of resort by members of a declared criminal
22 organisation and is a member of that declared criminal
23 organisation is presumed, unless the contrary is shown, to
24 knowingly permit those premises to be habitually used as a
25 place of resort by members of that declared criminal
26 organisation.
27 (5) In proceedings for an offence under subsection (3), a person
28 who is concerned in the management of any premises habitually
29 used as a place of resort by members of a declared criminal
30 organisation and is a member of that declared criminal
31 organisation is presumed, unless the contrary is shown, to be
32 knowingly concerned in the management of those premises.
page 82
Criminal Organisations Control Bill 2011
Offences Part 4
Other offences Division 2
s. 108
1 108. Offence for responsible person or co-licensee to allow
2 controlled person access to firearm
3 A responsible person or co-licensee notified under section 94
4 who allows the controlled person to use or have access to a
5 firearm commits an offence.
6 Penalty:
7 (a) in the case of a responsible person, a fine of $4 000;
8 (b) in the case of a co-licensee, imprisonment for
9 12 months or a fine of $4 000.
page 83
Criminal Organisations Control Bill 2011
Part 5 Protection of criminal intelligence information
s. 109
1 Part 5 -- Protection of criminal intelligence
2 information
3 109. Term used: criminal intelligence information
4 In this Part --
5 criminal intelligence information means --
6 (a) information relating to actual or suspected criminal
7 activity (whether in this State or elsewhere) the
8 disclosure of which could reasonably be expected --
9 (i) to prejudice criminal investigations; or
10 (ii) to enable the discovery of the existence or
11 identity of a confidential source of information
12 relevant to law enforcement; or
13 (iii) to endanger a person's life or physical safety;
14 or
15 (b) information the disclosure of which could reasonably be
16 expected to reveal and prejudice the effectiveness of any
17 of the following --
18 (i) police information-gathering or surveillance
19 methods;
20 (ii) police procedures for preventing, detecting,
21 investigating or dealing with matters arising out
22 of breaches of the law.
23 110. Protection of criminal intelligence information in
24 proceedings for declaration
25 (1) This section applies to the following proceedings --
26 (a) an application for a declaration under Part 2, and the
27 hearing of the application;
28 (b) an application for the renewal or revocation of a
29 declaration under Part 2, and the hearing of the
30 application;
page 84
Criminal Organisations Control Bill 2011
Protection of criminal intelligence information Part 5
s. 110
1 (c) an application under section 128 for the cancellation of
2 the registration of an interstate declaration, and the
3 hearing of the application.
4 (2) In proceedings to which this section applies, the designated
5 authority must take all reasonable steps to maintain the
6 confidentiality of information that the designated authority
7 considers to be properly classified by the Commissioner of
8 Police or the CC Commissioner as criminal intelligence
9 information, including steps --
10 (a) to receive evidence and hear argument about the
11 information in private and in the absence of any party to
12 the proceedings other than the Commissioner of Police
13 or, as the case requires, the CC Commissioner or the
14 representative of either of them; and
15 (b) to prohibit the publication of evidence about criminal
16 intelligence information.
17 (3) If the designated authority considers that the information cannot
18 properly be classified as criminal intelligence information, the
19 designated authority must --
20 (a) give the Commissioner of Police or, as the case requires,
21 the CC Commissioner the opportunity to withdraw the
22 information from consideration; and
23 (b) if the information is withdrawn, prohibit the publication
24 of evidence about the information.
25 (4) Despite subsections (2) and (3), the designated authority may
26 disclose criminal intelligence information or information
27 withdrawn under subsection (3) to any of the following --
28 (a) the Attorney General;
29 (b) the Parliamentary Commissioner, for the purposes of
30 enabling the Parliamentary Commissioner to carry out
31 his or her functions under Part 8 Division 1;
32 (c) a person conducting a review under Part 8 Division 2;
33 (d) a court;
page 85
Criminal Organisations Control Bill 2011
Part 5 Protection of criminal intelligence information
s. 111
1 (e) a person to whom the Commissioner of Police or, as the
2 case requires, the CC Commissioner authorises
3 disclosure.
4 111. Protection of criminal intelligence information in court
5 proceedings under this Act
6 (1) This section applies to the following proceedings --
7 (a) an application for the making, revocation or variation of
8 an interim control order, and the hearing of the
9 application;
10 (b) an application for the making, variation or revocation of
11 a control order, and the hearing of the application;
12 (c) an appeal under section 64 against a decision of the
13 court in relation to the making of a control order, and the
14 hearing of the appeal;
15 (d) an application for leave to appeal under section 64, and
16 the hearing of the application;
17 (e) an application for the registration of an interstate control
18 order that is referred to the court under section 135(2),
19 and the hearing of the application;
20 (f) an application under section 148(1) for the registration
21 of variations to a registered interstate control order, if
22 the application is referred to the court under
23 section 135(2), and the hearing of the application;
24 (g) an application under section 149 for the variation of a
25 registered interstate control order, and the hearing of the
26 application;
27 (h) an application under section 152 for the cancellation of
28 the registration of an interstate control order, and the
29 hearing of the application.
30 (2) In proceedings to which this section applies, the court must take
31 all reasonable steps to maintain the confidentiality of
32 information that the court considers to be properly classified by
33 the Commissioner of Police or, as the case requires, the CC
page 86
Criminal Organisations Control Bill 2011
Protection of criminal intelligence information Part 5
s. 111
1 Commissioner as criminal intelligence information, including
2 steps --
3 (a) to receive evidence and hear argument about the
4 information in private and in the absence of any party to
5 the proceedings other than the Commissioner of Police
6 or, as the case requires, the CC Commissioner or the
7 representative of either of them; and
8 (b) to prohibit the publication of evidence about criminal
9 intelligence information.
10 (3) If the court considers that the information cannot properly be
11 classified as criminal intelligence information, the court must --
12 (a) give the Commissioner of Police or, as the case requires,
13 the CC Commissioner the opportunity to withdraw the
14 information from consideration; and
15 (b) if the information is withdrawn, prohibit the publication
16 of evidence about the information.
17 (4) Despite subsections (2) and (3), the court may disclose criminal
18 intelligence information or information withdrawn under
19 subsection (3) to any of the following --
20 (a) the Attorney General;
21 (b) the Parliamentary Commissioner, for the purposes of
22 enabling the Parliamentary Commissioner to carry out
23 his or her functions under Part 8 Division 1;
24 (c) a person conducting a review under Part 8 Division 2;
25 (d) another court;
26 (e) a person to whom the Commissioner of Police or, as the
27 case requires, the CC Commissioner authorises
28 disclosure.
page 87
Criminal Organisations Control Bill 2011
Part 5 Protection of criminal intelligence information
s. 112
1 112. Redacted copy of affidavit may be served to protect criminal
2 intelligence information
3 (1) This section applies if --
4 (a) a provision of this Act requires a copy of an affidavit to
5 be served on any person; and
6 (b) the disclosure of information included in that affidavit
7 would be in breach of section 111.
8 (2) If this section applies, an edited copy of the affidavit, from
9 which the information that cannot be disclosed has been
10 removed or erased, must be served instead.
page 88
Criminal Organisations Control Bill 2011
Information about declarations and orders Part 6
s. 113
1 Part 6 -- Information about declarations and orders
2 113. Commissioner of Police to keep register
3 (1) The Commissioner of Police must keep an accurate and
4 up-to-date register of the following information --
5 (a) details of each declared criminal organisation,
6 including --
7 (i) the name of the organisation, or the name by
8 which the organisation is commonly known; and
9 (ii) details of the declaration under which that
10 organisation is a declared criminal organisation,
11 including any renewals of the declaration;
12 (b) the reasons for designated authorities' decisions, as
13 provided to the Commissioner under section 14(3)
14 or 22(3);
15 (c) the personal details of each person who is a controlled
16 person under an interim control order or a control order;
17 (d) any other prescribed information.
18 (2) The register is called the Register of Criminal Organisations and
19 Controlled Persons.
20 (3) The Commissioner may keep the register in any form the
21 Commissioner thinks fit.
22 114. Publication of information on register
23 (1) The Commissioner of Police must make the information on the
24 register publicly available free of charge in the following
25 ways --
26 (a) by making the register available during normal office
27 hours at a prescribed place for public inspection;
28 (b) by making the register available on a website maintained
29 by the Western Australian Police Force.
page 89
Criminal Organisations Control Bill 2011
Part 6 Information about declarations and orders
s. 115
1 (2) The Commissioner may make the information on the register
2 available in any other way the Commissioner considers
3 appropriate.
4 115. Provision of information about declarations and orders
5 (1) A regulatory authority and the Commissioner of Police may
6 enter into arrangements for the supply to the regulatory
7 authority of information that --
8 (a) is contained in the records of the Western Australian
9 Police Force; and
10 (b) concerns --
11 (i) any organisation that is a declared criminal
12 organisation; or
13 (ii) any controlled person who is an applicant for, or
14 the holder of, an authorisation; or
15 (iii) any person who is an applicant for, or the holder
16 of, an authorisation and who is a member of, or
17 associates with any member of, a declared
18 criminal organisation;
19 and
20 (c) is reasonably necessary for the proper exercise of any
21 function of the regulatory authority relating to
22 authorisations and disciplinary proceedings.
23 (2) Arrangements made under subsection (1) are sufficient authority
24 for supplying information to which that subsection applies.
25 (3) The regulatory authority --
26 (a) must take steps to maintain the confidentiality of any
27 information supplied under subsection (1) that is
28 classified by the Commissioner as criminal intelligence
29 information; and
30 (b) must not disclose that information to any person unless
31 authorised to do so by the Commissioner.
page 90
Criminal Organisations Control Bill 2011
Information about declarations and orders Part 6
s. 116
1 (4) Nothing in this section limits or affects any other power or duty
2 conferred or imposed on the Commissioner or the regulatory
3 authority under the written law under which the regulatory
4 authority operates.
5 116. Application of this Part to registered interstate declarations
6 and control orders
7 (1) This Part applies in relation to registered interstate declarations
8 in the same way that it applies to declarations.
9 (2) This Part applies in relation to registered interstate control
10 orders in the same way that it applies to control orders.
page 91
Criminal Organisations Control Bill 2011
Part 7 Reciprocal recognition and enforcement of declarations and
orders
Division 1 Preliminary
s. 117
1 Part 7 -- Reciprocal recognition and enforcement of
2 declarations and orders
3 Division 1 -- Preliminary
4 117. Overview of this Part
5 (1) This Part provides for declarations and orders made under a
6 corresponding provision of a law of another State or Territory to
7 be registered under this Act and have effect as declarations and
8 control orders in this State.
9 (2) An interstate declaration can be registered by a registrar of the
10 Supreme Court without a hearing, and notice of the registration
11 of the declaration must then be published in the Gazette and in
12 at least one newspaper circulating throughout the State.
13 (3) An interstate control order that does not need to be adapted or
14 modified for its effective operation in this State can be
15 registered by a registrar of the Supreme Court without a hearing.
16 (4) An application for the registration of an interstate control order
17 that needs to be adapted or modified for its effective operation
18 in this State is referred to the Supreme Court, which decides
19 what adaptations and modifications (if any) are required for the
20 order to be registered.
21 (5) A registered interstate control order --
22 (a) must be served personally on the person to whom it
23 relates; and
24 (b) has effect for 5 years, but its registration can be
25 cancelled or renewed.
26 (6) This section is intended only as a guide to the general scheme
27 and effect of this Part, and does not limit the other provisions of
28 this Part.
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1 118. Terms used
2 In this Part --
3 corresponding law means a provision of a law of another State
4 or Territory that is prescribed under section 170 to be a
5 corresponding law;
6 interstate control order means an order (by whatever name
7 called) made under a corresponding law;
8 interstate declaration means a declaration (by whatever name
9 called) made under a corresponding law;
10 respondent --
11 (a) in relation to an interstate declaration, means the
12 organisation to which the declaration relates;
13 (b) in relation to an interstate control order, means the
14 person to whom the order relates.
15 Division 2 -- Reciprocal recognition of declarations
16 Subdivision 1 -- Applications for registration of
17 interstate declaration
18 119. Application for registration of interstate declaration
19 (1) The Commissioner of Police or the CC Commissioner may
20 apply to a registrar for the registration of an interstate
21 declaration.
22 (2) An application for registration --
23 (a) must be made in the prescribed manner; and
24 (b) must be accompanied by an affidavit that includes or is
25 accompanied by --
26 (i) a copy of the declaration to be registered; and
27 (ii) enough information to enable the registrar to find
28 that the declaration is an interstate declaration
29 that is in force.
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1 (3) An application for the registration of an interstate declaration
2 does not need to be served on the respondent.
3 120. When interstate declaration cannot be registered
4 An application for the registration of an interstate declaration
5 cannot be made under this Division, and an interstate
6 declaration cannot be registered under this Division, if any of
7 the following apply to the declaration --
8 (a) the law of the jurisdiction in which the declaration was
9 made specifies a period within which the respondent
10 may appeal against the declaration, and that period is
11 still running;
12 (b) the determination of an application by the respondent for
13 leave to appeal against the declaration (whether made
14 before or after any appeal period has expired) is
15 pending;
16 (c) the determination of an appeal by the respondent against
17 the declaration is pending.
18 Subdivision 2 -- Registration of interstate declaration by registrar
19 121. Registration of interstate declaration by registrar
20 On an application under section 119 for the registration of an
21 interstate declaration, the registrar must register the declaration
22 if the registrar is satisfied --
23 (a) that the declaration is in force; and
24 (b) if the law of the jurisdiction in which the declaration
25 was made requires notice of the declaration to be
26 published, that the requirement has been complied with;
27 and
28 (c) if the law of the jurisdiction in which the declaration
29 was made requires that the declaration be served on any
30 organisation, person or group of persons, that the
31 requirement has been complied with or is taken to have
32 been complied with; and
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1 (d) that section 120 does not prevent registration of the
2 order.
3 122. Period of registration
4 (1) On registering an interstate declaration under this Division, the
5 registrar is to specify the date on which the registration expires.
6 (2) The date stated in accordance with subsection (1) is to be the
7 date on which the interstate declaration would cease to be in
8 force in the jurisdiction in which it was made if it were not
9 sooner revoked.
10 (3) The registration of the interstate declaration expires on the date
11 stated in accordance with subsection (1).
12 (4) Subsections (1) to (3) do not apply if, under the law of the
13 jurisdiction in which the interstate declaration was made, the
14 interstate declaration remains in force for an indefinite period,
15 in which case --
16 (a) on registering the declaration, the registrar is to specify
17 that the registration is for an indefinite period; and
18 (b) the registration of the interstate declaration does not
19 expire.
20 Subdivision 3 -- Notice of registration
21 123. Notice of registration
22 (1) Not later than 2 working days after registering an interstate
23 declaration, the registrar must give the applicant for the
24 registration of the interstate declaration a certificate of the
25 registration with a copy of the registered interstate declaration
26 attached.
27 (2) As soon as practicable after receiving a copy of the registered
28 interstate declaration under subsection (1), the applicant for the
29 registration of the declaration must publish notice of the
30 registration of the declaration in the Gazette and in at least one
31 newspaper circulating throughout the State.
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1 (3) Section 15(2) applies with all necessary modifications in
2 relation to the notice required by subsection (2).
3 (4) As soon as practicable after registering an interstate declaration,
4 the registrar must give notice of that registration to --
5 (a) the commissioner (by whatever name called) of the
6 police force or police service of the State or Territory in
7 which the declaration was made; and
8 (b) if the declaration was made by a court, a registrar of that
9 court.
10 Subdivision 4 -- Commencement, duration and effect of registered
11 interstate declaration
12 124. Commencement and duration of registered interstate
13 declaration
14 A registered interstate declaration --
15 (a) comes into force in this State on the day after the day on
16 which notice of the registration of the declaration is
17 published in the Gazette in accordance with
18 section 123(2); and
19 (b) remains in force in this State until one of the following
20 occurs --
21 (i) the registration of the declaration expires in
22 accordance with section 122(3);
23 (ii) the registration of the declaration is cancelled
24 under section 126, 127 or 128.
25 125. Effect of registration of interstate declaration
26 (1) A registered interstate declaration that has come into force
27 under section 124(a) operates in this State as if it were a
28 declaration made under Part 2.
29 (2) However, Part 2 Division 3 does not apply, except as provided
30 by section 128(2).
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1 Subdivision 5 -- Cancellation of registration of interstate declaration
2 126. Revocation in jurisdiction where interstate declaration
3 originally made
4 (1) Subsection (2) applies to a registered interstate declaration if --
5 (a) the declaration is revoked in the jurisdiction in which
6 the declaration was made; and
7 (b) a registrar receives notice of that revocation from --
8 (i) if the declaration was revoked by a court, an
9 officer of that court; or
10 (ii) the Commissioner of Police or the CC
11 Commissioner.
12 (2) On receiving notice of the revocation of the registered interstate
13 declaration, the registrar must --
14 (a) cancel the registration of the declaration without delay,
15 and the cancellation takes effect immediately; and
16 (b) give the Commissioner of Police or the CC
17 Commissioner (whichever was the applicant for the
18 registration of the declaration) written notice of that
19 cancellation.
20 127. Cancellation of registration of interstate declaration at
21 request of Commissioner of Police or CC Commissioner
22 (1) The Commissioner of Police or the CC Commissioner may, at
23 any time while an interstate declaration is registered under this
24 Division, apply to a registrar to cancel the registration of the
25 declaration.
26 (2) On receiving an application under this section, the registrar
27 must --
28 (a) cancel the registration of the declaration without delay,
29 and the cancellation takes effect immediately; and
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1 (b) give the Commissioner of Police or the CC
2 Commissioner (whichever was the applicant for the
3 cancellation) written notice of that cancellation.
4 128. Cancellation of registration of interstate declaration on
5 application by respondent or others
6 (1) The following persons may, at any time while an interstate
7 declaration is registered under this Division, apply for the
8 cancellation of the registration of the declaration --
9 (a) the respondent;
10 (b) any member of the respondent;
11 (c) any person who is a former member of the respondent, if
12 cancellation of the registration of the declaration is
13 sought on the ground that the organisation in respect of
14 which the declaration was made no longer exists, and
15 section 17(2) does not apply with respect to members of
16 that organisation.
17 (2) Sections 19 to 23 apply, with all necessary modifications, to an
18 application under subsection (1) as if it were an application
19 under Part 2 Division 3 for the revocation of a declaration made
20 by the declared criminal organisation or, as the case requires, a
21 member or former member of the declared criminal
22 organisation.
23 (3) Part 5 applies to proceedings under this section.
24 Subdivision 6 -- Notice of cancellation or expiry of registration
25 129. Notice of cancellation or expiry of registration of interstate
26 declaration
27 As soon as practicable after the registration of an interstate
28 declaration is cancelled under this Division or expires, the
29 Commissioner of Police or the CC Commissioner (whichever
30 was the applicant for the registration of the declaration) must
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s. 130
1 publish notice of the cancellation or expiry in the Gazette and in
2 at least one newspaper circulating throughout the State.
3 130. Registrar to notify police commissioner and original court of
4 cancellation of registration
5 As soon as practicable after the registration of an interstate
6 declaration is cancelled under this Division, the registrar must
7 give notice of that cancellation to --
8 (a) the commissioner (by whatever name called) of the
9 police force or police service of the State or Territory in
10 which the declaration was made; and
11 (b) if the declaration was made by a court, a registrar of that
12 court.
13 Subdivision 7 -- Effect of cancellation or expiry of registration
14 131. Effect of cancellation or expiry of registration of interstate
15 declaration
16 Section 25 applies with all necessary modifications to the expiry
17 or cancellation of the registration of an interstate declaration
18 under this Division as if it were the expiry or revocation of a
19 declaration made under Part 2.
20 Subdivision 8 -- Evidential provision
21 132. Proof of making of interstate declaration not required in
22 proceedings for offence
23 In proceedings for an offence, committed in this State, in which
24 it is necessary to establish that an organisation is or was a
25 declared criminal organisation, and a registered interstate
26 declaration is or was in force in respect of that organisation, no
27 proof is required of --
28 (a) the making of the interstate declaration; or
29 (b) the publication of notice of the declaration; or
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Division 3 Reciprocal recognition of control orders
s. 133
1 (c) service of the declaration on any organisation, person or
2 group of persons.
3 Division 3 -- Reciprocal recognition of control orders
4 Subdivision 1 -- Applications for registration of interstate
5 control order
6 133. Application for registration of interstate control order
7 (1) The Commissioner of Police may apply to a registrar for the
8 registration of an interstate control order.
9 (2) An application for registration --
10 (a) must be made in the prescribed manner; and
11 (b) must be accompanied by an affidavit that includes or is
12 accompanied by --
13 (i) a copy of the order to be registered; and
14 (ii) enough information to enable the registrar to find
15 that the order is an interstate control order that is
16 in force;
17 and
18 (c) must be accompanied by any other affidavit the
19 Commissioner intends to rely on at the hearing of the
20 application; and
21 (d) must state --
22 (i) whether the Commissioner considers that the
23 order needs to be adapted or modified for its
24 effective operation in this State; and
25 (ii) if so, the details of the adaptation or modification
26 that the Commissioner considers necessary.
27 (3) An application for the registration of an interstate control order
28 does not need to be served on the respondent.
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1 134. When interstate control order cannot be registered
2 An application for the registration of an interstate control order
3 cannot be made under this Division, and an interstate control
4 order cannot be registered under this Division, if --
5 (a) the respondent is a controlled person under an interim
6 control order or a control order made under this Act; or
7 (b) any of the following apply to the order --
8 (i) the law of the jurisdiction in which the order was
9 made specifies a period within which the
10 respondent may appeal against the order, and that
11 period is still running;
12 (ii) the determination of an application by the
13 respondent for leave to appeal against the order
14 (whether made before or after any appeal period
15 has expired) is pending;
16 (iii) the determination of an appeal by the respondent
17 against the order is pending.
18 Subdivision 2 -- Registration of interstate control order by registrar
19 135. Registration of interstate control order by registrar
20 (1) On an application under section 133 for the registration of an
21 interstate control order, the registrar must register the order if
22 the registrar is satisfied --
23 (a) that the order is in force; and
24 (b) that the order was served, or taken to be served, on the
25 respondent under the law of the jurisdiction where the
26 order was made; and
27 (c) that section 134 does not prevent registration of the
28 order; and
29 (d) that the order does not need to be adapted or modified
30 for its effective operation in this State.
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1 (2) If the registrar considers that the order needs to be adapted or
2 modified for its effective operation in this State, the registrar
3 must refer the application to the court.
4 Subdivision 3 -- Determination by court of application
5 for registration
6 136. Referral of application to court for adaptation or
7 modification
8 (1) This section applies if an application for the registration of an
9 interstate control order is referred to the court under
10 section 135(2).
11 (2) The Commissioner of Police must serve the following
12 documents personally on the respondent --
13 (a) a copy of the application for registration;
14 (b) all affidavits that accompanied the application;
15 (c) a notice stating the following in relation to the
16 application --
17 (i) that an application for the registration of the
18 interstate control order has been referred to the
19 court to consider whether or not, in order to be
20 registered, the order needs to be adapted or
21 modified for its effective operation in this State;
22 (ii) when and where the application is to be heard;
23 (iii) that the respondent may appear at the hearing;
24 (iv) that the court may register the interstate control
25 order (with or without adaptation or variation) in
26 the respondent's absence if the respondent does
27 not appear at the hearing.
28 (3) Subsection (2)(b) is subject to section 112.
29 (4) Sections 43 and 44 apply with all necessary modifications in
30 relation to service of the documents required by subsection (2).
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1 (5) If this section applies --
2 (a) the Commissioner of Police and the respondent may
3 appear at the hearing of the application and make
4 submissions in relation to the application; but
5 (b) the court may hear and determine the application
6 whether or not any of the persons who are entitled to be
7 present and make submissions at the hearing take
8 advantage of that opportunity.
9 137. Determination of application for registration
10 (1) On hearing an application for the registration of an interstate
11 control order referred to the court under section 135(2), the
12 court may direct a registrar to register the order --
13 (a) with any adaptations or modifications that the court
14 considers necessary or desirable for its effective
15 operation in this State; or
16 (b) without any adaptations or modifications.
17 (2) Before giving a direction under subsection (1), the court --
18 (a) must consider --
19 (i) anything that could be considered by the court if
20 the application were an application for a control
21 order under this Act; and
22 (ii) any changes in the respondent's circumstances
23 since the interstate control order was made;
24 and
25 (b) must be satisfied of the matters set out in
26 section 135(1)(a) to (c).
27 (3) The registrar must register the interstate control order in
28 accordance with the direction of the court.
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1 Subdivision 4 -- Period of registration
2 138. Period of registration
3 (1) The registration of an interstate control order remains in force
4 for a period of 5 years beginning on the day after the day on
5 which it is registered under this Division, unless the registration
6 is sooner cancelled or renewed.
7 (2) On registering an interstate control order under this Division,
8 the registrar is to specify the date on which the registration
9 expires.
10 Subdivision 5 -- Notice of registration
11 139. Notice of registration
12 (1) Not later than 2 working days after registering an interstate
13 control order, the registrar must give the Commissioner of
14 Police a certificate of the registration with a copy of the
15 registered interstate control order attached.
16 (2) As soon as practicable after receiving a copy of the registered
17 interstate control order under subsection (1), the Commissioner
18 of Police must serve a copy of the order personally on the
19 respondent.
20 (3) Sections 43 and 44 apply with all necessary modifications in
21 relation to service of the copy of the order required by
22 subsection (2).
23 (4) As soon as practicable after registering an interstate control
24 order, the registrar must notify the registrar of the court in the
25 jurisdiction in which the interstate control order was made that
26 the order has been registered under this Act.
27 140. Explanation of registered interstate control order
28 (1) The Commissioner of Police must ensure that all reasonable
29 steps are taken to give the person to whom a registered interstate
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s. 141
1 control order relates the explanation set out in subsection (2)
2 when the person is served with a copy of the order.
3 (2) The person must have explained to them, in language likely to
4 be understood by them --
5 (a) the person's obligations under the registered interstate
6 control order; and
7 (b) the consequences that may follow if the person fails to
8 comply with those obligations.
9 (3) Without limiting subsection (2), the explanation must include
10 advice that the names of persons who are controlled persons are
11 listed on the register kept under section 113.
12 (4) The explanation must, so far as practicable, be given both orally
13 and in writing.
14 (5) Failure to comply with this section does not invalidate the
15 registration of an interstate control order.
16 Subdivision 6 -- Commencement, duration and effect of registered
17 interstate control order
18 141. Commencement and duration of registered interstate
19 control order
20 (1) A registered interstate control order --
21 (a) comes into force in this State when the respondent is
22 served personally with a copy of the order; and
23 (b) remains in force in this State until one of the following
24 occurs --
25 (i) the registration of the order expires;
26 (ii) the registration of the order is cancelled under
27 section 148(3), 151, 152 or 153.
28 (2) Subsection (1)(b) is subject to section 147.
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1 142. Effect of registration of interstate control order
2 (1) A registered interstate control order that has come into force
3 under section 141(1)(a) operates in this State as if it were a
4 control order made under Part 3, but with the following
5 modifications --
6 (a) the order has the terms set out in the order or applying to
7 it under the law of the jurisdiction in which it was made,
8 with any adaptations or modifications directed by the
9 court under section 137;
10 (b) Part 3 Division 3 Subdivision 5 does not apply, except
11 as provided by sections 149, 151 and 152;
12 (c) the order operates in this State only while it remains
13 registered under this Division, but subject to
14 section 147.
15 (2) This Act applies to a registered interstate control order in the
16 same way that it applies to a control order made under Part 3,
17 except as provided by subsection (1).
18 Subdivision 7 -- Renewal of registration of interstate control order
19 143. Application for renewal of registration of interstate control
20 order
21 (1) The Commissioner of Police may apply to a registrar for the
22 renewal of the registration of an interstate control order.
23 (2) An application for renewal --
24 (a) may be made before or after the registration of the
25 interstate control order expires; and
26 (b) must be in the prescribed form; and
27 (c) must be accompanied by an affidavit that includes
28 enough information to enable the registrar to find that
29 the order remains in force in the jurisdiction in which it
30 was made.
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1 (3) An application for the renewal of the registration of an interstate
2 control order does not need to be served on the respondent.
3 144. Registrar to renew registration of interstate control order
4 (1) On an application under section 143 for the renewal of the
5 registration of an interstate control order, the registrar must
6 renew the registration of the order if the registrar is satisfied that
7 the order remains in force in the jurisdiction in which it was
8 made.
9 (2) There are no limits on the number of times the registration of an
10 interstate control order can be renewed.
11 145. Period of renewal
12 (1) The registration of an interstate control order that is renewed
13 under section 144 remains in force for a period of 5 years
14 beginning on --
15 (a) if the registration is renewed before it expires, the day
16 after the day on which the registration of the order
17 would otherwise have expired; or
18 (b) if the registration is renewed after it expires, the day
19 after the day on which the registration of the order is
20 renewed.
21 (2) Subsection (1) applies unless the registration of the order is
22 sooner cancelled or renewed.
23 (3) On renewing the registration of an interstate control order under
24 section 144, the registrar is to specify the date on which the
25 renewal of the registration expires.
26 146. Notice of renewal of registration
27 (1) Not later than 2 working days after renewing the registration of
28 an interstate control order, the registrar must give the
29 Commissioner of Police a certificate of the renewal of the
30 registration with a copy of the registered interstate control order
31 attached.
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1 (2) As soon as practicable after receiving a certificate under
2 subsection (1), the Commissioner of Police must serve a copy of
3 the certificate and the registered order personally on the
4 respondent.
5 (3) Sections 43, 44 and 140 apply with all necessary modifications
6 in relation to service of the copy of the certificate and order
7 required by subsection (2).
8 (4) As soon as practicable after renewing the registration of an
9 interstate control order, the registrar must notify the registrar of
10 the court in the jurisdiction in which the interstate control order
11 was made that the registration of the order has been renewed
12 under this Division.
13 147. Effect of renewal of registration of interstate control order
14 (1) If the registration of an interstate control order is renewed under
15 section 144, the effect that the order has in this State is
16 determined in accordance with this section.
17 (2) The order continues in force in this State uninterrupted if --
18 (a) the registration of the order is renewed before that
19 registration expires; and
20 (b) the copy of the certificate and order required by
21 section 146 is served personally on the respondent in
22 accordance with that section not later than the day on
23 which the registration of the order would have expired if
24 it had not been renewed.
25 (3) Subsection (4) applies if --
26 (a) the registration of the order is renewed before that
27 registration expires but subsection (2)(b) does not apply;
28 or
29 (b) the registration of the order is renewed after that
30 registration expires.
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s. 148
1 (4) If this subsection applies --
2 (a) the order ceases to be in force in this State --
3 (i) if subsection (3)(a) applies, when the registration
4 of the order would have expired if it had not been
5 renewed; or
6 (ii) if subsection (3)(b) applies, when the registration
7 of the order expires;
8 and
9 (b) the order again comes into force in this State when the
10 copy of the certificate and order required by section 146
11 is served personally on the respondent in accordance
12 with that section.
13 Subdivision 8 -- Variation and cancellation of registered interstate
14 control order
15 148. Variation or revocation in jurisdiction where interstate
16 control order originally made
17 (1) If an interstate control order is varied by a court in the
18 jurisdiction in which the order was made --
19 (a) the variations to the order may be registered under this
20 Division in the same way as the interstate control order
21 is registered, whether the variations were made before or
22 after the registration of the interstate control order; and
23 (b) the provisions of this Division apply accordingly with
24 all necessary modifications.
25 (2) Subsection (3) applies to a registered interstate control order
26 if --
27 (a) the order is revoked by a court in the jurisdiction in
28 which the order was made; and
29 (b) a registrar receives notice of that revocation from an
30 officer of that court or from the Commissioner of Police.
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1 (3) On receiving notice of the revocation of the registered interstate
2 control order, the registrar must --
3 (a) cancel the registration of the order without delay, and
4 the cancellation takes effect immediately; and
5 (b) give the Commissioner of Police written notice of that
6 cancellation.
7 (4) As soon as practicable after receiving notice under
8 subsection (3)(b) of the cancellation of the registration of an
9 interstate control order, the Commissioner of Police must serve
10 a copy of the notice of cancellation personally on the
11 respondent.
12 (5) Section 44 applies with all necessary modifications in relation to
13 service of a copy of the notice of cancellation on the respondent.
14 149. Variation of registered interstate control order in this State
15 (1) The respondent or the Commissioner of Police may, at any time
16 while an interstate control order is registered under this
17 Division, apply to the court to vary the order as it has effect in
18 this State.
19 (2) Sections 67, 68, 69 and 72 apply, with all necessary
20 modifications, to an application under subsection (1) as if it
21 were an application for the variation of a control order made
22 under Part 3.
23 150. Procedure where registered order varied to include firearms
24 condition
25 If a registered interstate control order is varied under
26 section 148(1) or 149, and the effect of the variation is to
27 include a firearms condition, Part 3 Division 5 Subdivision 5
28 applies with all necessary modifications.
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s. 151
1 151. Cancellation of registration of interstate control order at
2 request of Commissioner of Police
3 (1) The Commissioner of Police may, at any time while an
4 interstate control order is registered under this Division, apply
5 to a registrar to cancel the registration of the order.
6 (2) On receiving an application under this section, the registrar
7 must --
8 (a) cancel the registration of the order without delay, and
9 the cancellation takes effect immediately; and
10 (b) give the Commissioner of Police written notice of that
11 cancellation.
12 (3) As soon as practicable after receiving notice under
13 subsection (2)(b) of the cancellation of the registration of an
14 interstate control order, the Commissioner of Police must serve
15 a copy of the notice of cancellation personally on the
16 respondent.
17 (4) Section 44 applies with all necessary modifications in relation to
18 service of a copy of the notice of cancellation on the respondent.
19 152. Cancellation of registration of interstate control order on
20 application by respondent
21 (1) The respondent may, at any time while an interstate control
22 order is registered under this Division, apply to the court to
23 cancel the registration of the order.
24 (2) Sections 70 to 72 apply, with all necessary modifications, to an
25 application under subsection (1) as if it were an application for
26 the revocation of a control order made by the controlled person
27 under Part 3.
28 153. Registration of interstate control order cancelled if control
29 order made under this Act
30 The registration of an interstate control order under this
31 Division is immediately cancelled if the person to whom the
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Division 3 Reciprocal recognition of control orders
s. 154
1 order relates becomes a controlled person under an interim
2 control order or a control order made under Part 3.
3 154. Registrar to notify original court of cancellation of
4 registration
5 As soon as practicable after the registration of an interstate
6 control order is cancelled under this Division, the registrar must
7 notify the registrar of the court in the jurisdiction in which the
8 interstate control order was made that the registration of the
9 order under this Act has been cancelled.
10 Subdivision 9 -- Evidential provision
11 155. Proof of making or variation of interstate control order not
12 required on proceedings for breach
13 In proceedings for a breach, committed in this State, of a
14 registered interstate control order, no proof is required of --
15 (a) the making of the interstate control order or of any
16 variation of it that operates in this State under
17 section 148(1); or
18 (b) the service of the order or variation on the person to
19 whom the order relates.
page 112
Criminal Organisations Control Bill 2011
Monitoring and review Part 8
Monitoring Division 1
s. 156
1 Part 8 -- Monitoring and review
2 Division 1 -- Monitoring
3 156. Terms used
4 In this Division --
5 monitoring period means the period of 5 years beginning on the
6 day on which this Part comes into operation;
7 reporting period, in relation to an anniversary of the day on
8 which the monitoring period begins, means the period of
9 12 months ending on that anniversary.
10 157. Parliamentary Commissioner to monitor exercise of powers
11 (1) For the monitoring period, the Parliamentary Commissioner is
12 to keep under scrutiny the exercise of powers conferred on the
13 following persons under this Act --
14 (a) the Commissioner of Police;
15 (b) police officers.
16 (2) For the purpose of carrying out the Parliamentary
17 Commissioner's functions under this Division --
18 (a) the Parliamentary Commissioner has all the powers,
19 rights and privileges that he or she has under the
20 Parliamentary Commissioner Act 1971 with respect to
21 investigations under that Act; and
22 (b) Part III Division 3 of that Act applies accordingly with
23 all necessary modifications; and
24 (c) section 11 of that Act applies as if the functions of the
25 Parliamentary Commissioner under this Division were
26 functions of the Parliamentary Commissioner under
27 that Act.
page 113
Criminal Organisations Control Bill 2011
Part 8 Monitoring and review
Division 1 Monitoring
s. 158
1 (3) Without limiting subsection (2) --
2 (a) the Commissioner of Police must ensure that the
3 Parliamentary Commissioner is provided with a report
4 on --
5 (i) any declaration made under Part 2; and
6 (ii) any revocation of a declaration made under
7 Part 2; and
8 (iii) any interim control order; and
9 (iv) any control order; and
10 (v) any registered interstate declaration; and
11 (vi) any cancellation of the registration of an
12 interstate declaration; and
13 (vii) any registered interstate control order; and
14 (viii) any prosecution for an offence under any
15 provision of Part 4;
16 and
17 (b) the report must include the reasons why --
18 (i) the declaration or interim control order or control
19 order was sought; or
20 (ii) the registration of the interstate declaration or
21 interstate control order was sought.
22 158. Parliamentary Commissioner to report on monitoring
23 activities
24 (1) The Parliamentary Commissioner must, as soon as practicable
25 after the first, second, third and fourth anniversary of the day on
26 which the monitoring period begins, and after the expiry of the
27 monitoring period --
28 (a) prepare a report on his or her activities under this
29 Division, and include in the report any observations or
30 recommendations that the Parliamentary Commissioner
31 considers appropriate to make about the operation of this
32 Act; and
page 114
Criminal Organisations Control Bill 2011
Monitoring and review Part 8
Review of Act Division 2
s. 159
1 (b) provide a copy of the report to the Minister and the
2 Commissioner of Police.
3 (2) The report prepared after an anniversary of the monitoring
4 period must relate to the Parliamentary Commissioner's
5 activities during the reporting period.
6 (3) The report prepared after the expiry of the monitoring period
7 must relate to the Parliamentary Commissioner's activities
8 during the whole monitoring period.
9 (4) The Minister must cause each report to be laid before each
10 House of Parliament within 12 sitting days of that House after
11 the Minister receives a copy of it.
12 159. Maintenance of confidentiality of criminal intelligence
13 The Parliamentary Commissioner must maintain the
14 confidentiality of information provided to the Parliamentary
15 Commissioner for the purposes of this Division if that
16 information is --
17 (a) classified by the Commissioner of Police or the CC
18 Commissioner as criminal intelligence information; or
19 (b) provided to the Parliamentary Commissioner under
20 section 110(4) or 111(4).
21 160. Jurisdiction under Parliamentary Commissioner Act 1971 not
22 limited
23 Nothing in this Division limits or affects the jurisdiction or
24 functions of the Parliamentary Commissioner under the
25 Parliamentary Commissioner Act 1971.
26 Division 2 -- Review of Act
27 161. Act to be reviewed after 5 years
28 (1) The Minister must carry out a review of the operation and
29 effectiveness of this Act to determine whether or not the policy
page 115
Criminal Organisations Control Bill 2011
Part 8 Monitoring and review
Division 2 Review of Act
s. 162
1 objectives of the Act remain valid and whether or not the terms
2 of the Act remain appropriate for securing those objectives.
3 (2) The review must be undertaken as soon as practicable after the
4 expiry of the period of 5 years beginning on the day on which
5 this Part comes into operation.
6 (3) The Minister must prepare a report on the outcome of the
7 review and cause the report to be laid before each House of
8 Parliament as soon as practicable after it is prepared but not
9 later than 12 months after the end of the period of 5 years.
10 162. Maintenance of confidentiality of criminal intelligence
11 The Minister, or any person conducting the review on behalf of
12 the Minister, must maintain the confidentiality of information
13 provided to the Minister or other person for the purposes of this
14 Division if that information is --
15 (a) classified by the Commissioner of Police or the CC
16 Commissioner as criminal intelligence information; or
17 (b) provided to the Minister or other person under
18 section 110(4) or 111(4).
page 116
Criminal Organisations Control Bill 2011
Miscellaneous Part 9
s. 163
1 Part 9 -- Miscellaneous
2 163. Nature of proceedings under this Act
3 (1) All proceedings under this Act (except proceedings for an
4 offence under a provision of this Act) are civil proceedings.
5 (2) In proceedings under this Act (except proceedings for an
6 offence under a provision of this Act) --
7 (a) questions of fact are to be decided on the balance of
8 probabilities; and
9 (b) a rule of construction that is applicable only in relation
10 to the criminal law does not apply in the interpretation
11 of this Act.
12 164. Costs in proceedings under this Act
13 (1) In proceedings under this Act (except proceedings for an
14 offence under a provision of this Act), a court may order a party
15 (party A) to pay all or part of another party's costs only if --
16 (a) any act or omission of or caused by party A was
17 unreasonable in the circumstances and contributed to the
18 institution or continuation of the proceedings; or
19 (b) any act or omission of or caused by party A during or in
20 the conduct of the proceedings was calculated to prolong
21 the proceedings unnecessarily or cause unnecessary
22 expense.
23 (2) This section overrides any provision in any other written law
24 under which a court can make an order about costs for
25 proceedings under this Act.
26 165. Proof of service
27 (1) If service of any document is required under this Act, proof of
28 service must be given by certificate in writing.
29 (2) The certificate must state that, on the day and at the time and
30 place stated in the certificate, the person giving the certificate
page 117
Criminal Organisations Control Bill 2011
Part 9 Miscellaneous
s. 166
1 personally served on a person the requisite document in
2 accordance with this Act.
3 (3) The certificate must state full particulars of the name and
4 address of the person served, unless section 36(b)(ii)
5 or 42(1)(a)(ii) or 53(b)(ii) applies.
6 (4) A certificate under this section is, in the absence of evidence to
7 the contrary, sufficient proof of service of the document on the
8 person stated to have been served.
9 166. Notification of service
10 As soon as practicable after a person serves a document in
11 accordance with this Act, the person must --
12 (a) complete a certificate of service in accordance with
13 section 165; and
14 (b) deliver the certificate to a registrar of the court.
15 167. Delegation by Commissioner of Police
16 (1) The Commissioner of Police may delegate any power or duty of
17 the Commissioner of Police under this Act to a police officer
18 who is specified, or of a class specified, in the delegation.
19 (2) The delegation must be in writing signed by the Commissioner
20 of Police.
21 (3) A police officer to whom a power or duty is delegated under
22 this section cannot delegate that power or duty.
23 (4) A police officer exercising or performing a power or duty that
24 has been delegated to that police officer under this section is
25 taken to do so in accordance with the terms of the delegation
26 unless the contrary is shown.
27 (5) Nothing in this section limits the ability of the Commissioner of
28 Police to perform a function through an officer or agent.
page 118
Criminal Organisations Control Bill 2011
Miscellaneous Part 9
s. 168
1 168. Delegation by Corruption and Crime Commissioner
2 The CC Commissioner may delegate any power or duty of the
3 CC Commissioner under this Act as if it were a power or duty
4 of the Corruption and Crime Commission under the Corruption
5 and Crime Commission Act 2003, and section 185 of that Act
6 applies with all necessary modifications.
7 169. Protection from liability for wrongdoing
8 (1) An action in tort does not lie against a person for anything that
9 the person has done, in good faith, in the performance or
10 purported performance of a function under this Act.
11 (2) The protection given by subsection (1) applies even though the
12 thing done as described in that subsection may have been
13 capable of being done whether or not this Act had been enacted.
14 (3) Despite subsection (1), the State is not relieved of any liability
15 that it might have for another person having done anything as
16 described in that subsection.
17 (4) In this section, a reference to the doing of anything includes a
18 reference to an omission to do anything.
19 170. Regulations
20 The Governor may make regulations prescribing all matters that
21 are required or permitted by this Act to be prescribed, or are
22 necessary or convenient to be prescribed for giving effect to the
23 purposes of this Act.
24 171. Power to make rules of court
25 (1) The Supreme Court may make rules of court under the Supreme
26 Court Act 1935 for the purposes of this Act.
27 (2) Subsection (1) does not limit the rule-making powers conferred
28 by the Supreme Court Act 1935.
page 119
Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 172
1 Part 10 -- Amendments to other Acts
2 172. Bail Act 1982 amended
3 (1) This section amends the Bail Act 1982.
4 (2) In Schedule 2 item 1 insert before the row relating to
5 section 279:
6
s. 221E(1) Participating in activities of
criminal organisation
s. 221F(1) Instructing commission of offence
for benefit of criminal organisation
7
8 (3) After Schedule 2 item 2 insert:
9
2AA. Criminal Organisations Control Act 2011
s. 99(1) Association by controlled person
with another controlled person
s. 99(3) Association by controlled person
with another controlled person
on 3 or more occasions within
3 month period
s. 102 Offence for controlled person to
get funds to, from or for declared
criminal organisation
s. 103 Other contraventions of interim
control order or control order
s. 106 Recruiting members for declared
criminal organisation
s. 107(2) Permitting premises to be
habitually used as place of resort
by members of declared criminal
organisation
page 120
Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 173
s. 107(3) Being knowingly concerned in the
management of premises
habitually used as place of resort
by members of declared criminal
organisation
1
2 173. The Criminal Code amended
3 (1) This section amends The Criminal Code.
4 (2) After section 5(3)(a) insert:
5
6 (ba) that the circumstances in which the offence was
7 allegedly committed are such that, if the
8 accused were convicted of the offence, the
9 Sentencing Act 1995 Part 2 Division 2A would
10 apply to the sentencing of the accused for that
11 offence; or
12
13 (3) In Part IV after section 221B insert:
14
15 Chapter XXVIA -- Facilitating activities of criminal
16 organisations
17 221C. Terms used
18 (1) In this Chapter --
19 COC Act means the Criminal Organisations Control
20 Act 2011;
21 criminal organisation has the meaning given in
22 section 221D;
23 declared criminal organisation has the meaning given
24 in the Criminal Organisations Control Act 2011
25 section 3(1);
page 121
Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 173
1 indictable offence includes conduct engaged in outside
2 this State (including outside Australia) that, if it
3 occurred in this State, would constitute an indictable
4 offence.
5 (2) A term used in this Chapter and also in the COC Act
6 has the same meaning in this Chapter as it has in that
7 Act, unless the term is defined in this Code or the
8 context requires otherwise.
9 221D. Term used: criminal organisation
10 (1) For the purposes of this Chapter, an entity is a criminal
11 organisation if --
12 (a) the entity is a declared criminal organisation; or
13 (b) all of the following apply to the entity --
14 (i) the entity is an organisation;
15 (ii) members of the organisation associate
16 for the purpose of organising, planning,
17 facilitating, supporting or engaging in
18 serious criminal activity;
19 (iii) the organisation represents a risk to
20 public safety and order in this State.
21 (2) In determining whether an entity is a criminal
22 organisation for the purposes of subsection (1)(b) --
23 (a) a court may have regard to any of the matters
24 that a designated authority is entitled to have
25 regard to under the COC Act section 13(2)
26 (other than paragraph (e)) in considering
27 whether or not to make a declaration under that
28 Act; and
29 (b) section 13(3) of that Act applies with all
30 necessary changes for the purposes of the court
31 satisfying itself that subsection (1)(b)(ii) of this
32 section applies to the entity.
page 122
Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 173
1 221E. Participating in activities of criminal organisation
2 (1) A person who, for the purpose of enhancing the ability
3 of a criminal organisation to facilitate or commit an
4 indictable offence, by act or omission, participates in or
5 contributes to any activity of the criminal organisation
6 is guilty of a crime, and is liable to imprisonment for
7 5 years.
8 Summary conviction penalty: imprisonment for
9 2 years.
10 (2) For the purposes of subsection (1), facilitation of an
11 offence does not require knowledge of a particular
12 offence the commission of which is facilitated, or that
13 an offence actually be committed.
14 (3) In a prosecution for an offence under subsection (1), it
15 is not necessary to prove that --
16 (a) the criminal organisation actually facilitated or
17 committed an indictable offence; or
18 (b) the participation or contribution of the accused
19 actually enhanced the ability of the criminal
20 organisation to facilitate or commit an
21 indictable offence; or
22 (c) the accused knew the specific nature of any
23 indictable offence that may have been
24 facilitated or committed by the criminal
25 organisation; or
26 (d) the accused knew the identity of any of the
27 persons who are members of the criminal
28 organisation.
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Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 173
1 (4) In determining whether an accused participates in or
2 contributes to any activity of a criminal organisation,
3 the court may consider, among other factors, whether
4 the accused --
5 (a) uses a name, word, symbol or other
6 representation that identifies, or is associated
7 with, the criminal organisation; or
8 (b) frequently associates with members of the
9 criminal organisation; or
10 (c) receives any benefit from the criminal
11 organisation; or
12 (d) repeatedly engages in activities at the
13 instruction of any of the members of the
14 criminal organisation.
15 221F. Instructing commission of offence for benefit of
16 criminal organisation
17 (1) A person who is a member of a criminal organisation
18 and who instructs, directly or indirectly, any person to
19 commit an offence under this Code or any other written
20 law, or an offence against a law of a jurisdiction other
21 than Western Australia, for the benefit of, at the
22 direction of, or in association with, the criminal
23 organisation is guilty of a crime, and is liable to
24 imprisonment for 20 years.
25 (2) In a prosecution for an offence under subsection (1), it
26 is not necessary to prove that --
27 (a) an offence other than the offence under
28 subsection (1) was actually committed; or
29 (b) the accused instructed a particular person to
30 commit an offence; or
31 (c) the accused knew the identity of all of the
32 persons who are members of the criminal
33 organisation.
34
page 124
Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 174
1 174. Criminal Investigation Act 2006 amended
2 (1) This section amends the Criminal Investigation Act 2006.
3 (2) After section 69A insert:
4
5 69B. Searching people for things relevant to interim
6 control orders or control orders
7 If an officer reasonably suspects that a person in a
8 public place is prohibited by an interim control order or
9 a control order under the Criminal Organisations
10 Control Act 2011 from having something in his or her
11 possession (a prohibited thing) in that place, the
12 officer --
13 (a) may do a basic search of the person, whether or
14 not the officer suspects the person is in
15 possession of a prohibited thing; and
16 (b) may, subject to section 146, seize any
17 prohibited thing that the officer finds; and
18 (c) may do a forensic examination on the
19 prohibited thing, whether or not the officer
20 seizes it.
21
22 175. Criminal Investigation (Identifying People) Act 2002
23 amended
24 (1) This section amends the Criminal Investigation (Identifying
25 People) Act 2002.
26 (2) Before section 73(1)(n) insert:
27
28 (nd) for the purposes of the Criminal Organisations
29 Control Act 2011;
30
page 125
Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 176
1 176. Criminal Property Confiscation Act 2000 amended
2 (1) This section amends the Criminal Property Confiscation
3 Act 2000.
4 (2) After section 141(1)(a) insert:
5
6 (ba) any offence against a law in force anywhere in
7 Australia, in any case where --
8 (i) the involvement or suspected
9 involvement of a person in the
10 commission of an offence, or the
11 commission or suspected commission of
12 an offence by a person, or the
13 conviction of a person for an offence, is
14 relevant for the purposes of any
15 proceedings under this Act against that
16 person or for the purposes of any
17 provision of this Part or Parts 5, 6, 8, 10
18 or 11; and
19 (ii) at the time of the person's involvement
20 or suspected involvement in the
21 commission of the offence or, as the
22 case requires, the time of the
23 commission or suspected commission of
24 the offence by the person, the person is
25 or was a controlled person under a
26 control order under the Criminal
27 Organisations Control Act 2011;
28 or
29
page 126
Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 176
1 (3) After section 148(3) insert:
2
3 (4A) In subsection (4B) --
4 declared criminal organisation has the meaning given
5 in the Criminal Organisations Control Act 2011
6 section 3(1);
7 member, of a declared criminal organisation, has the
8 meaning given in the Criminal Organisations Control
9 Act 2011 section 3(1).
10 (4B) Subsection (4C) applies if --
11 (a) a person is convicted of a confiscation offence;
12 and
13 (b) at the time of the commission of the offence,
14 the person was a member of a declared criminal
15 organisation.
16 (4C) If this subsection applies, it is presumed that all the
17 property that the person owns or effectively controls at
18 the time of the commission of the confiscation offence
19 is crime-derived property, unless the person establishes
20 the contrary.
21
22 (4) Delete section 159(2)(a) and insert:
23
24 (a) the person is charged with a serious drug
25 offence or a relevant drug offence, as those
26 terms are defined in the Misuse of Drugs
27 Act 1981 section 32A(3); and
28
29 (5) In section 159(2) after paragraphs (b) and (c) insert:
30
31 and
32
page 127
Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 177
1 177. Evidence Act 1906 amended
2 (1) This section amends the Evidence Act 1906.
3 (2) In section 106A insert in alphabetical order:
4
5 criminal organisation has the meaning given in The
6 Criminal Code section 221D;
7 criminal organisation offence means an offence
8 alleged to have been committed (whether before or
9 after the Criminal Organisations Control Act 2011
10 section 177 comes into operation) --
11 (a) by a person who, at the time of the commission
12 of the alleged offence, is alleged to have been a
13 member of a criminal organisation; or
14 (b) at the direction of a criminal organisation; or
15 (c) in association with one or more members of a
16 criminal organisation (whether or not those
17 members are or have been charged with, or
18 convicted of, the offence); or
19 (d) for the benefit of a criminal organisation;
20 victim, in relation to a serious sexual offence or a
21 criminal organisation offence, means a person upon or
22 in respect of whom it is alleged that the offence was
23 committed, attempted or proposed;
24
25 (3) In section 106G(3) in the definition of protected witness delete
26 paragraph (b) and insert:
27
28 (b) if the proceeding is for a serious sexual offence,
29 the victim (irrespective of the person's age); or
30 (c) if the proceeding is for a criminal organisation
31 offence --
32 (i) the victim (irrespective of the person's
33 age); or
page 128
Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 178
1 (ii) any witness for the prosecution
2 (irrespective of the person's age).
3
4 (4) In section 106R(3a) delete "person upon or in respect of whom
5 it is alleged that the offence was committed, attempted or
6 proposed" and insert:
7
8 victim of the offence
9
10 (5) After section 106R(3a) insert:
11
12 (3B) Despite subsection (3), in any proceeding for a criminal
13 organisation offence an order must be made under
14 subsection (1) in respect of any person who is a victim
15 of the offence or a witness for the prosecution unless
16 the court is satisfied --
17 (a) that subsection (3) does not apply to the person;
18 and
19 (b) that the person does not wish to be declared to
20 be a special witness.
21
22 (6) In section 106R(8) delete "a person referred to in
23 subsection (3a)" and insert:
24
25 or a criminal organisation offence a person referred to
26 in subsection (3a) or (3B), as the case requires,
27
28 178. Liquor Control Act 1988 amended
29 (1) This section amends the Liquor Control Act 1988.
page 129
Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 179
1 (2) At the end of Part 5A insert:
2
3 152NA. Relationship with Criminal Organisations Control
4 Act 2011
5 A prohibition order is of no effect to the extent that it
6 conflicts with or duplicates a condition of an interim
7 control order or a control order under the Criminal
8 Organisations Control Act 2011 that applies to the
9 relevant person.
10
11 179. Misuse of Drugs Act 1981 amended
12 (1) This section amends the Misuse of Drugs Act 1981.
13 (2) In section 32A(1):
14 (a) in paragraph (1)(b)(ii) delete "belong," and insert:
15
16 belong;
17
18 (b) after paragraph (b) insert:
19
20 or
21 (c) a relevant drug offence and, at the time of the
22 commission of the offence, was a member of a
23 declared criminal organisation,
24
25 (c) after "or the serious drug offence referred to in
26 paragraph (b)," insert:
27
28 or the relevant drug offence referred to in paragraph (c),
29
page 130
Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 180
1 (3) In section 32A(3) insert in alphabetical order:
2
3 declared criminal organisation has the meaning given
4 in the Criminal Organisations Control Act 2011
5 section 3(1);
6 member, of a declared criminal organisation, has the
7 meaning given in the Criminal Organisations Control
8 Act 2011 section 3(1);
9 relevant drug offence means an offence under any of
10 the following provisions --
11 (a) section 5(1)(a)(i);
12 (b) section 5(1)(c), where the premises are used for
13 the purpose referred to in section 5(1)(a)(i);
14 (c) sections 6(1), 7(1) and 14(1);
15 (d) section 33, where the principal offence (as
16 defined in that section) is one of the offences
17 listed in paragraphs (a) to (c);
18
19 180. Prohibited Behaviour Orders Act 2010 amended
20 (1) This section amends the Prohibited Behaviour Orders Act 2010.
21 (2) Before section 10(7)(a) insert:
22
23 (aa) a condition of an interim control order or a
24 control order under the Criminal Organisations
25 Control Act 2011; or
26
page 131
Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 181
1 181. Sentencing Act 1995 amended
2 (1) This section amends the Sentencing Act 1995.
3 (2) After Part 2 Division 1 insert:
4
5 Division 2A -- Sentencing where declared criminal
6 organisations involved
7 9A. Terms used
8 (1) In this Division --
9 COC Act means the Criminal Organisations Control
10 Act 2011;
11 COC Act offence means an offence under the COC Act
12 Part 4;
13 declared criminal organisation has the meaning given
14 in the Criminal Organisations Control Act 2011
15 section 3(1);
16 relevant indictable offence means an indictable
17 offence listed in Schedule 1A Part 1;
18 relevant simple offence means a simple offence listed
19 in Schedule 1A Part 2.
20 (2) A term used in this Division and also in the COC Act
21 has the same meaning in this Division as it has in that
22 Act, unless the term is defined in this Act or the
23 context requires otherwise.
24 9B. Application of this Division
25 This Division overrides --
26 (a) Division 1; and
27 (b) The Criminal Code sections 3(5) and 5(8).
page 132
Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 181
1 9C. Principal objectives of sentencing for offences
2 where declared criminal organisation involved
3 (1) This section applies to an offender who is convicted
4 of --
5 (a) a COC Act offence; or
6 (b) an offence to which section 9D(3) or (4)
7 applies.
8 (2) The principal objectives of the court in sentencing an
9 offender to which this section applies must be --
10 (a) to denounce the activities of declared criminal
11 organisations, their members and associates;
12 and
13 (b) to protect the community from those activities.
14 9D. Mandatory minimum sentences where declared
15 criminal organisation involved
16 (1) Subsections (3) and (4) apply if --
17 (a) an offender is convicted of --
18 (i) a relevant indictable offence, whether
19 the offence is dealt with on indictment
20 or summarily; or
21 (ii) a relevant simple offence;
22 and
23 (b) the offence was committed by that offender --
24 (i) at the direction of a declared criminal
25 organisation; or
26 (ii) in association with one or more persons
27 who, at the time of the commission of
28 the offence, were members of a declared
29 criminal organisation (whether or not
30 those persons were also convicted of the
31 offence), but only if the offender knew,
page 133
Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 181
1 at the time of the commission of the
2 offence, that one or more of those
3 persons were members of a declared
4 criminal organisation; or
5 (iii) for the benefit of a declared criminal
6 organisation.
7 (2) For the purposes of subsection (1), if, at the time of the
8 commission of the offence, the offender was a member
9 of a declared criminal organisation --
10 (a) it is presumed that the offence was committed
11 by the offender in all of the circumstances
12 referred to in subsection (1)(b)(i) to (iii),
13 without the prosecution having to show which
14 of those circumstances actually applies; and
15 (b) that presumption is rebutted only if the offender
16 shows that the offence was not committed in
17 any of those circumstances.
18 (3) If this subsection applies, and the offence of which the
19 offender was convicted is a relevant indictable offence
20 dealt with on indictment, the court must impose on the
21 offender --
22 (a) if the statutory penalty for the offence includes
23 life imprisonment, a term of imprisonment of
24 not less than 15 years; or
25 (b) if the statutory penalty for the offence is or
26 includes a period of imprisonment (but not life
27 imprisonment), a term of imprisonment of not
28 less than 75% of that statutory penalty, but in
29 no case less than 2 years (even if the maximum
30 penalty for the offence is otherwise less than
31 2 years' imprisonment); or
32 (c) if the statutory penalty for the offence does not
33 otherwise include imprisonment, a term of
34 imprisonment of 2 years.
page 134
Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 181
1 (4) If this subsection applies, and the offence of which the
2 offender was convicted is a relevant indictable offence
3 dealt with summarily or a relevant simple offence, the
4 court must impose on the offender --
5 (a) if the statutory penalty for the offence is or
6 includes a period of imprisonment, a term of
7 imprisonment of not less than 2 years (even if
8 the maximum penalty for the offence is
9 otherwise less than 2 years' imprisonment); or
10 (b) if the statutory penalty for the offence does not
11 otherwise include imprisonment, a term of
12 imprisonment of 2 years.
13 (5) However, the court must sentence the offender under
14 subsection (3) if the offence is a relevant indictable
15 offence dealt with summarily but the offender is
16 committed for sentence and, under The Criminal Code
17 section 5(10), is liable to the penalty with which the
18 offence is punishable on indictment.
19 (6) This section is subject to section 9E.
20 9E. Section 9D not applicable to persons aged under 18
21 Section 9D does not apply to an offender who, at the
22 time of the commission of the offence, was under
23 18 years of age.
24 9F. Further provisions relating to mandatory minimum
25 sentences imposed under section 9D
26 (1) A court must not suspend a term of imprisonment
27 imposed under section 9D(3) or (4).
28 (2) Section 9D does not prevent the court from --
29 (a) imposing life imprisonment, if life
30 imprisonment may be imposed for the offence;
31 or
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Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 181
1 (b) imposing indefinite imprisonment under
2 Part 14; or
3 (c) fining the offender as well as imposing a term
4 of imprisonment if --
5 (i) both imprisonment and a fine may be
6 imposed for the offence; or
7 (ii) section 9D(3)(c) or (4)(b) applies.
8 9G. Eligibility for parole
9 (1) If a court sentences an offender to a fixed term of
10 imprisonment under section 9D(3) or (4), the court
11 must not make a parole eligibility order under
12 section 89 in respect of that term of imprisonment.
13 (2) Subsection (1) overrides section 89.
14 (3) Subsection (4) applies if --
15 (a) an offender is convicted of murder; and
16 (b) section 9D(3) applies to the offender in respect
17 of that offence; and
18 (c) the court sentences the offender to life
19 imprisonment for that offence; and
20 (d) under section 90(1)(a), the court sets a
21 minimum period that the offender must serve
22 before being eligible for release on parole.
23 (4) If this subsection applies, the court must set a
24 minimum period of at least 20 years.
25 (5) Subsection (4) overrides section 90(1)(a).
26
27 (3) At the end of Part 17 insert:
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Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 181
1
2 124C. Orders under Criminal Organisations Control
3 Act 2011
4 (1) For the purposes of section 123, a control order made
5 against an offender under the Criminal Organisations
6 Control Act 2011 is taken to be an order made under
7 this Part.
8 (2) Only the Supreme Court can make a control order
9 under this Part.
10
11 (4) After section 150 insert:
12
13 Schedule 1A -- Relevant indictable and simple
14 offences for purposes of Part 2 Division 2A
15 [s. 9A(1)]
16 Part 1 -- Relevant indictable offences
Enactment Description of offence
1. The Criminal Code
s. 68B(2) Being armed in or near place of
public entertainment
s. 68C(2) Being armed in public in company
s. 68D(2) Having ready access to both
weapons and cash
s. 68E(2) Having ready access to both
weapons and illegal drugs
s. 68(1) Being armed in a way that may
cause fear
s. 71 Fighting in public causing fear
s. 74 Threatening violence
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Part 10 Amendments to other Acts
s. 181
Enactment Description of offence
s. 82 Bribery of public officer
s. 83 Corruption
s. 85 Falsification of records by public
officer
s. 87(2) Impersonating a public officer
s. 121 Judicial corruption
s. 122 Official corruption not judicial but
relating to offences
s. 123 Corrupting or threatening jurors
s. 124 Perjury
s. 127 False evidence before Royal
Commission
s. 128 Threatening witness before Royal
Commission etc.
s. 129 Fabricating evidence
s. 130 Corruption of witnesses
s. 132 Destroying evidence
s. 133 Preventing witnesses from
attending
s. 135 Conspiring to defeat justice
s.136 Compounding or concealing
offences
s. 143 Attempting to pervert course of
justice
s. 151 Obstructing officers of courts of
justice
s. 172 Obstructing public officers
s. 221E(1) Participating in activities of
criminal organisation
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Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 181
Enactment Description of offence
s. 221F(1) Instructing commission of offence
for benefit of criminal organisation
s. 279 Murder
s. 280 Manslaughter
s. 281 Unlawful assault causing death
s. 283 Attempt to murder
s. 292 Disabling in order to commit
indictable offence etc
s. 294 Acts intended to cause grievous
bodily harm or to resist or prevent
arrest
s. 297 Grievous bodily harm
s. 301 Wounding and similar acts
s. 304(2) Acts or omissions, with intent to
harm, causing bodily harm or
danger
s. 317 Assaults occasioning bodily harm
s. 317A Assaults with intent
s. 318 Serious assaults
s. 320(2)-(6) Child under 13, sexual offences
against
s. 321(2)-(6) Child of or over 13 and under 16,
sexual offences against
s. 323 Indecent assault
s. 324 Aggravated indecent assault
s. 325 Sexual penetration without consent
s. 326 Aggravated sexual penetration
without consent
s. 327 Sexual coercion
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Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 181
Enactment Description of offence
s. 328 Aggravated sexual coercion
s. 330(2)-(6) Incapable person, sexual offences
against
s. 331B Sexual servitude
s. 331C Conducting business involving
sexual servitude
s. 331D Deceptive recruiting for
commercial sexual services
s. 332 Kidnapping
s. 333 Deprivation of liberty
s. 338A Threats with intent to influence
s. 338B Threats
s. 338C(1) and (2) Statements or acts creating false
apprehension as to existence of
threats or danger
338E(1) Stalking with intent to intimidate
s. 378(2) Stealing a motor vehicle,
aggravated by reckless or
dangerous driving
s. 378(4a) Stealing an aircraft
s. 378(5) Stealing if offence committed
under certain circumstances
s. 392 Robbery
s. 393 Assault with intent to rob
s. 397 Demanding property with threats
with intent to extort or gain
s. 398 Attempts at extortion by threats
s. 401(1) and (2) Burglary
s. 444 Criminal damage
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Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 181
Enactment Description of offence
s. 557 Making or possession of
explosives under suspicious
circumstances
s. 558 Conspiracy to commit indictable
offence
s. 563A(1) Property laundering
2. Bush Fires Act 1954
s. 32(2) Offences of lighting or attempting
to light fire likely to injure
3. Corruption and Crime Commission Act 2003
s. 168 Giving false testimony
s. 169 Bribery of witness
s. 172 Preventing witness from attending
s. 173 Injury or detriment to witness
4. Criminal Organisations Control Act 2011
s. 99(1) Association by controlled person
with another controlled person --
if the offender is liable to
imprisonment for 5 years
s. 102 Offence for controlled person to
get funds to, from or for declared
criminal organisation
s. 106 Recruiting members for declared
criminal organisation
5. Firearms Act 1973
s. 6(3) Indictable offence of contravention
of regulation prohibiting
acquisition etc. of potentially
dangerous firearm, silencer etc.
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Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 181
Enactment Description of offence
s. 19(1) Obtaining, disposing of etc.
firearm or ammunition when not
holder of licence or permit
s. 19(4) Repairing or manufacturing
firearm or ammunition otherwise
than in accordance with licence
s. 23(3) and (5) Indictable offences relating to
firearms
6. Misuse of Drugs Act 1981
s. 6(1) Indictable offences concerned with
prohibited drugs
s. 7(1) Indictable offences concerned with
prohibited plants
s. 7A(1) Selling etc thing that person knows
will be used in hydroponic
cultivation of prohibited plants
s. 14(1) Having possession of category 1 or
category 2 item in excess of
prescribed quantity
s. 33(1) Attempting to commit an
indictable offence under
section 6(1), 7(1), 7A(1) or 14(1)
s. 33(2) Conspiring with another to commit
an indictable offence under
section 6(1), 7(1), 7A(1) or 14(1)
s. 33(3) Inciting another to commit, or
becoming an accessory after the
fact to, an indictable offence under
section 6(1), 7(1), 7A(1) or 14(1)
7. Road Traffic Act 1974
s. 59 Dangerous driving causing death,
injury etc.
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Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 181
Enactment Description of offence
s. 59A Dangerous driving causing bodily
harm -- if the offender is liable to
imprisonment for 7 years
1 Part 2 -- Relevant simple offences
Enactment Description of offence
1. The Criminal Code
s. 206 Supplying intoxicants to people
likely to abuse them
s. 313 Common assaults
s. 338E(2) Stalking in manner reasonably
expected to intimidate
s. 428 Possessing stolen or unlawfully
obtained property
s. 445 Damaging property
s. 557H Possessing a disguise
s. 557I(2) Possessing bulletproof clothing
s. 560 Conspiracy to commit simple
offence
2. Bail Act 1982
s. 50(1) Indemnifying or agreeing to
indemnify surety
s. 50C(3) Hindering community corrections
officer in administration of home
detention condition
s. 50D(2) Hindering police officer seeking to
ascertain compliance with home
detention condition
s. 51(1), (2) and (2a) Failure to comply with requirement
or condition of bail undertaking
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Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 181
Enactment Description of offence
s. 60 Failure of accused or surety to
notify change of residential address
s. 62 Giving false information for bail
purposes
3. Corruption and Crime Commission Act 2003
s. 165 Obstructing the Commission, the
Parliamentary Inspector or their
officers
s. 171 Destroying evidence
4. Criminal Organisations Control Act 2011
s. 99(1) Association by controlled person
with another controlled person --
if the offender is liable to
imprisonment for not more than
2 years
s. 99(3) Association by controlled person
with another controlled person
on 3 or more occasions within
3 month period
s. 103 Other contraventions of interim
control order or control order
s. 107(2) Permitting premises to be
habitually used as place of resort
by members of declared criminal
organisation
s. 107(3) Being knowingly concerned in the
management of premises
habitually used as place of resort
by members of declared criminal
organisation
5. Firearms Act 1973
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Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 181
Enactment Description of offence
s. 19(2) Obtaining, disposing of etc.
firearm or ammunition from or to
person not holding licence or
permit
s. 21(2) Breach of or failure to observe
restriction, limitation or condition
of licence permit or approval
s. 22A(2) and (3) Offences relating to possession and
production of Extract of Licence
s. 22C(1) Offences relating to Extract of
Licence, licences, permits etc.
s. 23(1), (2), (6), (7), (8), (9), General offences
(9a), (10), (10a) and (11)
s. 24(6) Failing to cooperate with police
officer in exercise of powers
relating to firearms etc.
s. 30(4) Offences relating to obtaining or
disposing of ammunition
s. 30A(1), (2) and (3) Offences relating to sale and
disposal of firearms
s. 30B(1) and (2) Offences relating to reporting of
loss, theft, destruction of firearm or
disposal out of State
6. Misuse of Drugs Act 1981
s. 5(1) Offences concerned with
prohibited drugs and prohibited
plants
s. 6(2) Having in possession or using
prohibited drug
s. 7(2) Having in possession or cultivating
prohibited plant
page 145
Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 181
Enactment Description of offence
s. 7A(3) Contravening order not to sell etc.
thing that may be used in
hydroponic cultivation of plants
s. 8(1) and (2) Fraudulent behaviour in relation to
prohibited drugs
s. 14(2) Having possession of category 1 or
category 2 item without lawful
excuse
s. 15(1), (2) and (3) Offences relating to sale or supply
of category 1 items
s. 16(1) and (2) Offences relating to storage of
category 1 items
s. 17(1) and (2) Offences relating to sale or supply
of category 2 items
s. 18(1) and (2) Offences relating to declarations
s. 33(1) Attempting to commit a simple
offence under section 5(1) or 6(2)
or 7(2)
s. 33(2) Conspiring with another to commit
a simple offence under section 5(1)
or 6(2) or 7(2)
s. 33(3) Inciting another to commit, or
becoming an accessory after the
fact to, a simple offence under
section 5(1) or 6(2) or 7(2)
7. Restraining Orders Act 1997
s. 61(1), (2) and (2a) Breach of restraining order or
police order
8. Road Traffic Act 1974
s. 59A Dangerous driving causing bodily
harm -- if the offender is not liable
to imprisonment for 7 years
page 146
Criminal Organisations Control Bill 2011
Amendments to other Acts Part 10
s. 182
Enactment Description of offence
9. Weapons Act 1999
s. 6(1) Offences relating to prohibited
weapons
s. 7(1) and (2) Offences relating to controlled
weapons
s. 8A(2) and (3) Selling or supplying controlled
weapons to children
s. 8(1) Carrying or possessing article as
weapon
1
2 182. Young Offenders Act 1994 amended
3 (1) This section amends the Young Offenders Act 1994.
4 (2) In Schedule 2 item 1 insert before the row relating to
5 section 279:
6
s. 221E(1) Participating in activities of
criminal organisation
s. 221F(1) Instructing commission of offence
for benefit of criminal organisation
7
8 (3) After Schedule 2 item 2 insert:
9
2AA. Criminal Organisations Control Act 2011
s. 99(1) Association by controlled person
with another controlled person
s. 99(3) Association by controlled person
with another controlled person
on 3 or more occasions within
3 month period
page 147
Criminal Organisations Control Bill 2011
Part 10 Amendments to other Acts
s. 182
s. 102 Offence for controlled person to
get funds to, from or for declared
criminal organisation
s. 103 Other contraventions of interim
control order or control order
s. 106 Recruiting members for declared
criminal organisation
s. 107(2) Permitting premises to be
habitually used as place of resort
by members of declared criminal
organisation
s. 107(3) Being knowingly concerned in the
management of premises
habitually used as place of resort
by members of declared criminal
organisation
page 148
Criminal Organisations Control Bill 2011
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
associate........................................................................................................... 3(1)
authorisation .................................................................................................... 3(1)
CC Commissioner............................................................................................ 3(1)
close family member ...............................................................................3(1), 3(2)
co-licensee ..................................................................................................... 93(1)
Commissioner of Police................................................................................... 3(1)
control order .................................................................................................... 3(1)
controlled person ............................................................................................. 3(1)
conviction ........................................................................................................ 3(1)
corresponding law.................................................................................... 3(1), 118
court................................................................................................................. 3(1)
criminal intelligence information............................................................. 3(1), 109
declaration ....................................................................................................... 3(1)
declaration proceedings ................................................................................. 32(1)
declared criminal organisation......................................................................... 3(1)
designated authority......................................................................................... 3(1)
engage in conduct ........................................................................................ 103(1)
existing order ................................................................................................. 63(2)
family order ................................................................................................... 98(1)
firearm ............................................................................................................. 3(1)
firearms condition............................................................................................ 3(1)
firearms licence ............................................................................................... 3(1)
funds ................................................................................................................ 3(1)
identifying particular ..........................................................................................87
interim control order ........................................................................................ 3(1)
interstate control order............................................................................. 3(1), 118
interstate declaration................................................................................ 3(1), 118
judge ................................................................................................................ 3(1)
juvenile ............................................................................................................ 3(1)
juveniles......................................................................................................... 73(1)
member ............................................................................................................ 3(1)
monitoring period .............................................................................................156
new order ....................................................................................................... 63(2)
occupation........................................................................................................ 3(1)
officer of the Corruption and Crime Commission ........................................... 3(1)
organisation ..................................................................................................... 3(1)
owner ........................................................................................................... 107(1)
Parliamentary Commissioner........................................................................... 3(1)
party A ......................................................................................................... 164(1)
page 149
Criminal Organisations Control Bill 2011
Defined Terms
person A........................................................................................................... 3(2)
person B........................................................................................................... 3(2)
personal details ................................................................................................ 3(1)
prescribed activity..................................................................................3(1), 80(1)
prohibited item............................................................................................... 82(1)
prohibition order ............................................................................................ 98(1)
protected submission .............................................................................3(1), 11(1)
recruit............................................................................................................... 3(1)
register ............................................................................................................. 3(1)
registered interstate control order .................................................................... 3(1)
registered interstate declaration ....................................................................... 3(1)
registrar............................................................................................................ 3(1)
regulatory authority ......................................................................................... 3(1)
relevant order................................................................................................. 97(1)
reporting period ................................................................................................156
respondent................................................................................................ 7(1), 118
responsible person ........................................................................................... 3(1)
restraining order............................................................................................. 98(1)
senior police officer ......................................................................................... 3(1)
serious criminal activity................................................................................... 3(1)
serious indictable offence ................................................................................ 3(1)
serious violence offence .................................................................................. 3(1)
weapon............................................................................................................. 3(1)
working day ..................................................................................................... 3(1)
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