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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Crimes (Serious Crime Prevention Orders)
Bill 2016
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
The Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 is cognate
with this Bill.
Overview of Bill
The object of this Bill is to enable the Supreme Court and the District Court to make serious crime
prevention orders, on the application of the Commissioner of Police, the Director of Public
Prosecutions or the New South Wales Crime Commission, so as to prevent, restrict or disrupt
involvement by certain persons in serious crime related activities.
Outline of provisions
Part 1 Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed
by proclamation.
Clause 3 defines certain words and expressions used in the proposed Act. In particular, the term
serious criminal offence is defined to have the same meaning as in the Criminal Assets Recovery
Act 1990.
The proposed section also defines the appropriate court, in relation to an application for, or the
making of, a serious crime prevention order against a person, to mean:
(a) if the ground for making the order is that the person has been convicted of a serious criminal
offence--either the Supreme Court or the District Court, or
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Crimes (Serious Crime Prevention Orders) Bill 2016 [NSW]
Explanatory note
(b) if the ground for making the order is that the person has been involved in serious crime
related activity for which the person has not been convicted of a serious criminal offence--
the Supreme Court.
The term eligible applicant is defined to mean any of the following:
(a) the Commissioner of Police,
(b) the Director of Public Prosecutions,
(c) the New South Wales Crime Commission.
The term serious crime related activity is defined to mean anything done by a person that is or
was at the time a serious criminal offence, whether or not:
(a) the person has been charged with the offence, or
(b) if charged, the person:
(i) has been tried, or
(ii) has been tried and acquitted, or
(iii) has been convicted (even if the conviction has been quashed or set aside).
Clause 4 defines when a person is involved in serious crime related activity to mean:
(a) the person has engaged in serious crime related activity, or
(b) the person has engaged in conduct that has facilitated another person engaging in serious
crime related activity, or
(c) the person has engaged in conduct that is likely to facilitate serious crime related activity
(whether by the person or another person).
Part 2 Serious crime prevention orders
Clause 5 enables an appropriate court, on the application of an eligible applicant, to make a
serious crime prevention order against a specified person if:
(a) in the case of a natural person--the person is 18 years old or older, and
(b) the court is satisfied that:
(i) the person has been convicted of a serious criminal offence, or
(ii) the person has been involved in serious crime related activity for which the person
has not been convicted of a serious criminal offence (including by reason of being
acquitted of, or not being charged with, such an offence), and
(c) the court is satisfied that there are reasonable grounds to believe that the making of the order
would protect the public by preventing, restricting or disrupting involvement by the person
in serious crime related activities.
Clause 6 provides for the kinds of provisions that can, and cannot, be included in a serious crime
prevention order.
Clause 7 provides that a serious crime prevention order takes effect when it is served on the
person against whom it is made (or on a later date, if any, specified in the order) and has effect for
the period specified in the order. The proposed section also provides that the period specified in a
serious crime prevention order for its duration must not exceed a period of 5 years.
Clause 8 makes it an offence for a person against whom a serious crime prevention order is in
effect to contravene the order. The maximum penalty for the offence will be 1,500 penalty units
for a corporation (currently $165,000) and 300 penalty units (currently $33,000) or imprisonment
for 5 years, or both, for a natural person.
Clause 9 enables an eligible applicant to apply to the Supreme Court for a compulsory winding
up order requiring the winding up of a company under the Corporations Act 2001 of the
Commonwealth or an association registered under the Associations Incorporation Act 2009 that
has been convicted of an offence against proposed section 8. The proposed section also includes
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Crimes (Serious Crime Prevention Orders) Bill 2016 [NSW]
Explanatory note
provisions to displace the winding up provisions of the Corporations Act 2001 of the
Commonwealth to facilitate the making and implementation of such orders.
Clause 10 enables an eligible applicant to apply to the Supreme Court for a compulsory
dissolution order requiring the dissolution of a partnership if the partnership has, or one or more
of the partners have, been convicted of an offence against proposed section 8.
Clause 11 enables both the applicant for a serious crime prevention order and a person against
whom such an order is made to appeal to the Court of Appeal against a decision of the Supreme
Court or the District Court in relation to the order.
Clause 12 enables the court that makes a serious crime prevention order to vary or revoke the
order on application by the eligible applicant who applied for the order or the person against whom
the order is made.
Part 3 Miscellaneous
Clause 13 makes it clear that proceedings for a serious crime prevention order are civil
proceedings and not criminal proceedings. Accordingly, the civil standard of proof on the balance
of probabilities will apply.
Clause 14 enables rules of court to be made under the Civil Procedure Act 2005, the Supreme
Court Act 1970 and the District Court Act 1973 for the purposes of the proposed Act.
Clause 15 enables the Governor to make regulations for the purposes of the proposed Act.
Clause 16 provides for the review of the proposed Act in 3 years.
Schedule 1 Savings, transitional and other provisions
Schedule 1 contains savings, transitional and other provisions consequent on the enactment of the
proposed Act.
Schedule 2 Consequential amendment of Criminal Procedure
Act 1986 No 209
Schedule 2 makes a consequential amendment to the Act to provide for an otherwise indictable
offence against proposed section 8 to be dealt with summarily unless the prosecutor or accused
person elects otherwise.
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First print
New South Wales
Crimes (Serious Crime Prevention Orders)
Bill 2016
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Meaning of "involved in serious crime related activity" 2
Part 2 Serious crime prevention orders
5 Making of serious crime prevention orders 4
6 Content of serious crime prevention order 4
7 Duration of serious crime prevention order 5
8 Offence: contravention of serious crime prevention order 5
9 Winding up of voluntary corporation for contravening serious crime
prevention orders 5
10 Dissolution of partnerships 6
11 Right of appeal in relation to making of serious crime prevention order 7
12 Variation or revocation of serious crime prevention order 7
Part 3 Miscellaneous
13 Proceedings for serious crime prevention orders are civil and not
criminal 9
14 Rules of court 9
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Crimes (Serious Crime Prevention Orders) Bill 2016 [NSW]
Contents
Page
15 Regulations 9
16 Review of Act 9
Schedule 1 Savings, transitional and other provisions 10
Schedule 2 Consequential amendment of Criminal Procedure Act 1986 No 209 11
Page 2
New South Wales
Crimes (Serious Crime Prevention Orders)
Bill 2016
No , 2016
A Bill for
An Act to provide for the making of serious crime prevention orders and to make a consequential
amendment to the Criminal Procedure Act 1986.
See also the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016.
Crimes (Serious Crime Prevention Orders) Bill 2016 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the Crimes (Serious Crime Prevention Orders) Act 2016. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Definitions 7
(1) In this Act: 8
appropriate court, in relation to an application for, or the making of, a serious crime 9
prevention order against a person, means: 10
(a) if the ground for making the order is that the person has been convicted of a 11
serious criminal offence--either the Supreme Court or the District Court, or 12
(b) if the ground for making the order is that the person has been involved in 13
serious crime related activity for which the person has not been convicted of a 14
serious criminal offence--the Supreme Court. 15
eligible applicant means any of the following: 16
(a) the Commissioner of Police, 17
(b) the Director of Public Prosecutions, 18
(c) the New South Wales Crime Commission. 19
involved in serious crime related activity--see section 4. 20
modification includes addition, exception, omission or substitution. 21
serious crime prevention order--see section 5. 22
serious crime related activity means anything done by a person that is or was at the 23
time a serious criminal offence, whether or not: 24
(a) the person has been charged with the offence, or 25
(b) if charged, the person: 26
(i) has been tried, or 27
(ii) has been tried and acquitted, or 28
(iii) has been convicted (even if the conviction has been quashed or set 29
aside). 30
serious criminal offence has the same meaning as in the Criminal Assets Recovery 31
Act 1990. 32
(2) Notes included in this Act do not form part of this Act. 33
4 Meaning of "involved in serious crime related activity" 34
(1) For the purposes of this Act, a person is involved in serious crime related activity if: 35
(a) the person has engaged in serious crime related activity, or 36
(b) the person has engaged in conduct that has facilitated another person engaging 37
in serious crime related activity, or 38
(c) the person has engaged in conduct that is likely to facilitate serious crime 39
related activity (whether by the person or another person). 40
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Crimes (Serious Crime Prevention Orders) Bill 2016 [NSW]
Part 1 Preliminary
(2) In determining whether the conduct of a person has facilitated another person to 1
engage in serious crime related activity, a court may take into account whether the 2
conduct was reasonable in all the circumstances. 3
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Crimes (Serious Crime Prevention Orders) Bill 2016 [NSW]
Part 2 Serious crime prevention orders
Part 2 Serious crime prevention orders 1
5 Making of serious crime prevention orders 2
(1) An appropriate court may, on the application of an eligible applicant, make an order 3
(a serious crime prevention order) against a specified person if: 4
(a) in the case of a natural person--the person is 18 years old or older, and 5
(b) the court is satisfied that: 6
(i) the person has been convicted of a serious criminal offence, or 7
(ii) the person has been involved in serious crime related activity for which 8
the person has not been convicted of a serious criminal offence 9
(including by reason of being acquitted of, or not being charged with, 10
such an offence), and 11
(c) the court is satisfied that there are reasonable grounds to believe that the 12
making of the order would protect the public by preventing, restricting or 13
disrupting involvement by the person in serious crime related activities. 14
(2) If the ground relied on for an application for a serious crime prevention order against 15
a person is that the person has been involved in serious crime related activity for 16
which the person has not been convicted of a serious criminal offence by reason of 17
an acquittal, the application must include the following information: 18
(a) the serious criminal offence of which the person was acquitted, 19
(b) the court in which the offence was tried, 20
(c) the date on which the person was acquitted. 21
(3) Unless the appropriate court orders otherwise, the applicant must serve a copy of the 22
application on the person against whom the serious crime prevention order is sought 23
at least 14 days before the hearing date for the application. 24
(4) The person against whom a serious crime prevention order is sought and any other 25
person whose interests may be affected by the making of the order may appear at the 26
hearing of the application and make submissions in relation to the application. 27
(5) In determining an application for a serious crime prevention order, the court may 28
admit and take into account hearsay evidence despite any rule relating to the 29
admission of hearsay evidence (whether under the Evidence Act 1995 or otherwise) 30
if: 31
(a) the court is satisfied that the evidence is from a reliable source and is otherwise 32
relevant and of probative value, and 33
(b) the person against whom the order is sought to be made has been notified of, 34
and served with a copy of, the evidence before its admission. 35
(6) The applicant must ensure that a serious crime prevention order is served (whether 36
by the applicant or another person) on the person against whom it is made. The order 37
must be served by means of personal service. 38
6 Content of serious crime prevention order 39
(1) A serious crime prevention order may contain such prohibitions, restrictions, 40
requirements and other provisions as the court considers appropriate for the purpose 41
of protecting the public by preventing, restricting or disrupting involvement by the 42
person in serious crime related activities. 43
(2) However, a serious crime prevention order cannot contain provisions that require a 44
person: 45
(a) to answer questions or provide information orally, or 46
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Crimes (Serious Crime Prevention Orders) Bill 2016 [NSW]
Part 2 Serious crime prevention orders
(b) to answer questions, or to provide documents or other information, that are 1
subject to client legal privilege (legal professional privilege), or 2
(c) to disclose protected confidences (within the meaning of Division 1A of 3
Part 3.10 of the Evidence Act 1995), or 4
(d) to provide documents or other information that is held by the person in 5
confidence as part of a banking business unless: 6
(i) the person to whom the confidence is owed has consented, or 7
(ii) the order specifically requires the provision or production of the 8
documents or other information concerned (or documents or other 9
information of the kind concerned), or 10
(e) to answer questions, or to provide documents or other information, that would 11
result in a disclosure prohibited by a provision of another Act (other than the 12
Evidence Act 1995). 13
(3) Without limiting subsection (2), an answer given, or document or other information 14
provided, by a person in compliance with a requirement of a serious crime prevention 15
order (the compelled evidence) is not admissible as evidence against that person in 16
civil or criminal proceedings other than: 17
(a) proceedings for an offence against section 8, or 18
(b) proceedings in which the person has adduced the compelled evidence. 19
7 Duration of serious crime prevention order 20
(1) A serious crime prevention order: 21
(a) takes effect when it is served on the person against whom it is made or on such 22
later date as may be specified in the order, and 23
(b) once it takes effect, has effect for the period specified in the order. 24
(2) The period specified in a serious crime prevention order for its duration must not 25
exceed a period of 5 years. 26
8 Offence: contravention of serious crime prevention order 27
A person against whom a serious crime prevention order is in effect must not 28
contravene the order. 29
Maximum penalty: 30
(a) in the case of a corporation--1,500 penalty units, or 31
(b) in the case of a natural person--300 penalty units or imprisonment for 5 years, 32
or both. 33
9 Winding up of voluntary corporation for contravening serious crime prevention 34
orders 35
(1) An eligible applicant may apply to the Supreme Court for an order (a compulsory 36
winding up order) requiring the winding up of a voluntary corporation that has been 37
convicted of an offence against section 8. 38
(2) The Supreme Court may make a compulsory winding up order against a voluntary 39
corporation if the Court is satisfied that: 40
(a) the corporation has been convicted of an offence against section 8, and 41
(b) there are no further avenues of appeal available to the corporation in respect 42
of the conviction, and 43
(c) it is in the public interest, and just and equitable, for the corporation to be 44
wound up. 45
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Crimes (Serious Crime Prevention Orders) Bill 2016 [NSW]
Part 2 Serious crime prevention orders
(3) If a compulsory winding up order is made against an association, Part 6 of the 1
Associations Incorporation Act 2009 is taken (subject to such modifications as may 2
be prescribed by the regulations) to apply to the winding up of the association as if 3
the Supreme Court had made an order under section 63 (1) (i) of that Act for its 4
winding up. 5
(4) If a compulsory winding up order is made against a company, the winding up of the 6
company pursuant to that order is declared to be an applied Corporations legislation 7
matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 8
in relation to Chapter 5 of the Corporations Act, subject to the following 9
modifications: 10
(a) the order is taken to have effect for the purposes of the provisions as if the 11
Supreme Court has made an order for the winding up of the company under 12
section 461 (1) (k) of the Corporations Act, 13
(b) such other modifications as may be prescribed by the regulations. 14
Note. Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of 15
provisions of the Corporations Act 2001 and Part 3 of the Australian Securities and 16
Investments Commission Act 2001 of the Commonwealth as laws of the State in respect of 17
any matter declared by a law of the State (whether with or without modification) to be an 18
applied Corporations legislation matter for the purposes of that Part in relation to those 19
Commonwealth provisions. Section 14 (2) of the Corporations (Ancillary Provisions) Act 2001 20
ensures that a declaration made for the purposes of Part 3 of that Act only operates to apply 21
a provision of the Corporations legislation to a matter as a law of the State if that provision does 22
not already apply to the matter as a law of the Commonwealth. If a provision referred to in a 23
declaration already applies as a law of the Commonwealth, nothing in the declaration will affect 24
its continued operation as a law of the Commonwealth. 25
(5) Subsections (1), (2) and (4) are declared to be Corporations legislation displacement 26
provisions for the purposes of section 5G of the Corporations Act in relation to the 27
provisions of Chapter 5 of the Corporations Act. 28
Note. Section 5G of the Corporations Act enables a State to displace the operation of 29
provisions of the Corporations legislation in favour of provisions of State laws that are declared 30
under State law to be Corporations legislation displacement provisions for the purposes of that 31
section. See, in particular, section 5G (4), (8) and (11) of the Corporations Act in relation to the 32
displacements effected by this subsection. 33
(6) In this section: 34
association means an association registered under the Associations Incorporation 35
Act 2009. 36
company means a company within the meaning of the Corporations Act. 37
Corporations Act means the Corporations Act 2001 of the Commonwealth. 38
voluntary corporation means: 39
(a) a company, or 40
(b) an association. 41
10 Dissolution of partnerships 42
(1) An eligible applicant may apply to the Supreme Court for an order (a compulsory 43
dissolution order) requiring the dissolution of a partnership if the partnership has, or 44
one or more of the partners have, been convicted of an offence against section 8. 45
Note. The Partnership Act 1892 provides for incorporated limited partnerships. Incorporated 46
limited partnerships are persons for the purposes of this Act because they are bodies 47
corporate. See the definition of person in section 21 (1) of the Interpretation Act 1987. 48
(2) The Supreme Court may make a compulsory dissolution order against a partnership 49
if the Court is satisfied that: 50
(a) the partnership has, or one or more of the partners have, been convicted of an 51
offence against section 8, and 52
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Crimes (Serious Crime Prevention Orders) Bill 2016 [NSW]
Part 2 Serious crime prevention orders
(b) there are no further avenues of appeal available to the partnership or partners 1
in respect of the conviction or convictions, and 2
(c) it is in the public interest, and just and equitable, for the partnership to be 3
dissolved. 4
(3) If a compulsory dissolution order is made against a partnership: 5
(a) in the case of an incorporated limited partnership--Schedule 1 to the 6
Partnership Act 1892 is taken (subject to such modifications as may be 7
prescribed by the regulations) to apply to the dissolution of the partnership as 8
if the Registrar had published a conclusive certificate under clause 3 of that 9
Schedule on the date the order takes effect that the partnership is required to 10
be wound up, or 11
(b) in the case of any other partnership--Division 4 of Part 2 of the Partnership 12
Act 1892 is taken (subject to such modifications as may be prescribed by the 13
regulations) to apply to the dissolution as if the Supreme Court had made an 14
order for dissolution under section 35 (f) of that Act. 15
(4) In this section: 16
incorporated limited partnership and Registrar have the same meaning as in the 17
Partnership Act 1892. 18
11 Right of appeal in relation to making of serious crime prevention order 19
(1) Each of the following persons may appeal to the Court of Appeal against a decision 20
of the Supreme Court or the District Court in relation to the making of a serious crime 21
prevention order: 22
(a) the applicant for the order, 23
(b) the person against whom such an order is made. 24
(2) An appeal lies as of right on a question of law and with leave on a question of fact. 25
(3) An appeal as of right must be made within 28 days after the date on which the 26
decision was made unless the Court of Appeal grants leave for it to be made after that 27
time. 28
(4) On an appeal, the Court of Appeal may: 29
(a) confirm, vary or reverse the decision the subject of the appeal, and 30
(b) make any consequential or ancillary order. 31
12 Variation or revocation of serious crime prevention order 32
(1) The court that makes a serious crime prevention order may at any time vary or revoke 33
the order on application by: 34
(a) the applicant for the order, or 35
(b) the person against whom the order is made. 36
(2) An application for the variation or revocation of a serious crime prevention order 37
may only be made by the person against whom the order was made with the leave of 38
the court and leave is only to be granted if the court is satisfied there has been a 39
substantial change in the relevant circumstances since the order was made or last 40
varied. 41
(3) The court, before varying or revoking a serious crime prevention order under this 42
section, must: 43
(a) allow all parties to the proceedings for the original order a reasonable 44
opportunity to be heard on the matter, and 45
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Crimes (Serious Crime Prevention Orders) Bill 2016 [NSW]
Part 2 Serious crime prevention orders
(b) have regard to the same factors that the court is required to have regard to in 1
considering whether or not to make a serious crime prevention order and the 2
content of a serious crime prevention order. 3
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Crimes (Serious Crime Prevention Orders) Bill 2016 [NSW]
Part 3 Miscellaneous
Part 3 Miscellaneous 1
13 Proceedings for serious crime prevention orders are civil and not criminal 2
(1) For the purposes of this Act, proceedings on an application for a serious crime 3
prevention order are not criminal proceedings. 4
(2) Except in relation to an offence against this Act: 5
(a) the rules of construction applicable only in relation to the criminal law do not 6
apply in the interpretation of the provisions of this Act, and 7
(b) the rules of evidence applicable in civil proceedings (including as to the 8
burden of proof) apply, and those applicable only in criminal proceedings do 9
not apply, to proceedings under this Act. 10
14 Rules of court 11
Rules of court may be made under the Civil Procedure Act 2005, the Supreme Court 12
Act 1970 and the District Court Act 1973 for or with respect to the practice and 13
procedure to be followed in respect of proceedings under this Act for serious crime 14
prevention orders and any matters incidental to, or relating to, such practice and 15
procedure. 16
15 Regulations 17
The Governor may make regulations, not inconsistent with this Act, for or with 18
respect to any matter that by this Act is required or permitted to be prescribed or that 19
is necessary or convenient to be prescribed for carrying out or giving effect to this 20
Act. 21
16 Review of Act 22
(1) The Minister is to review this Act to determine whether the policy objectives of the 23
Act remain valid and whether the terms of the Act remain appropriate for securing 24
those objectives. 25
(2) The review is to be undertaken as soon as possible after the period of 3 years from 26
the commencement of this Act. 27
(3) A report on the outcome of the review is to be tabled in each House of Parliament 28
within 12 months after the end of the period of 3 years. 29
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Crimes (Serious Crime Prevention Orders) Bill 2016 [NSW]
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions 1
Part 1 General 2
1 Regulations 3
(1) The regulations may contain provisions of a savings or transitional nature consequent 4
on the enactment of this Act or any other Act that amends this Act. 5
(2) If the regulations so provide, any such provision may: 6
(a) have effect despite any specified provisions of this Act (including a provision 7
of this Schedule), and 8
(b) take effect from the date of assent to the Act concerned or a later date. 9
(3) To the extent to which any such provision takes effect from a date that is earlier than 10
the date of its publication on the NSW legislation website, the provision does not 11
operate so as: 12
(a) to affect, in a manner prejudicial to any person (other than the State or an 13
authority of the State), the rights of that person existing before the date of its 14
publication, or 15
(b) to impose liabilities on any person (other than the State or an authority of the 16
State) in respect of anything done or omitted to be done before the date of its 17
publication. 18
(4) A regulation made for the purposes of this clause may make separate savings and 19
transitional provisions or amend this Schedule to consolidate the savings and 20
transitional provisions. 21
Part 2 Provisions consequent on enactment of this Act 22
2 Application of Act to serious crime related activities and serious criminal offences 23
occurring before commencement 24
A serious crime prevention order may be made by reference to serious crime related 25
activities and serious criminal offences that occurred before the commencement of 26
this Act as well as to those that occur on or after that commencement. 27
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Crimes (Serious Crime Prevention Orders) Bill 2016 [NSW]
Schedule 2 Consequential amendment of Criminal Procedure Act 1986 No 209
Schedule 2 Consequential amendment of Criminal Procedure 1
Act 1986 No 209 2
Schedule 1 Indictable offences triable summarily 3
Insert after clause 18A in Part 4 of Table 1: 4
18B Crimes (Serious Crime Prevention Orders) Act 2016 5
An offence under section 8 of the Crimes (Serious Crime Prevention Orders) 6
Act 2016. 7
Page 11
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