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This is a Bill, not an Act. For current law, see the Acts databases.
Crimes (Criminal Organisations
Control) Amendment Bill 2013
No , 2013
A Bill for
An Act to amend the Crimes (Criminal Organisations Control) Act 2012 with respect
to the control of criminal organisations and their members.
Clause 1 Crimes (Criminal Organisations Control) Amendment Bill 2013
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Crimes (Criminal Organisations Control) Amendment 3
Act 2013. 4
2 Commencement 5
This Act commences on the date of assent to this Act. 6
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Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9 Schedule 1
Schedule 1 Amendment of Crimes (Criminal 1
Organisations Control) Act 2012 No 9 2
[1] Section 3 Definitions 3
Omit the definition of declared organisation from section 3 (1). Insert instead: 4
criminal organisation or declared organisation means an 5
organisation subject to a declaration under Part 2 that is in force. 6
Note. Section 27H provides that a registered interstate declaration 7
operates in New South Wales as if it were a declaration under Part 2. 8
[2] Section 3 (1) 9
Insert in alphabetical order in section 3 (1): 10
conviction includes a finding of guilt by any court, whether or not 11
a conviction is recorded. 12
[3] Section 3 (1), definition of "eligible Judge" 13
Omit the definition. 14
[4] Section 3 (1), definition of "protected submission" 15
Omit the definition. 16
[5] Section 3 (1), definition of "serious criminal activity" 17
Omit the definition. Insert instead: 18
serious criminal activity means any of the following: 19
(a) committing a serious criminal offence within the meaning 20
of section 6 of the Criminal Assets Recovery Act 1990, 21
(b) obtaining material benefits from conduct that constitutes 22
any such offence, 23
whether or not any person has been charged with or convicted of 24
any such offence. 25
[6] Section 3 (1), definition of "serious violence offence" 26
Omit the definition. 27
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[7] Part 2 1
Omit the Part. Insert instead: 2
Part 2 Criminal organisations 3
5 Commissioner may apply for declaration 4
(1) The Commissioner may apply to the Court for a declaration that 5
a particular organisation (the respondent) is a criminal 6
organisation for the purposes of this Act. 7
(2) The application must: 8
(a) be in writing, and 9
(b) identify the organisation, and 10
(c) describe the nature of the organisation and any of its 11
distinguishing characteristics, and 12
(d) set out the grounds on which the declaration is sought, and 13
(e) set out the information supporting the grounds on which 14
the declaration is sought, and 15
(f) set out details of any previous application for a declaration 16
of the organisation and the outcome of that application, 17
and 18
(g) state that a response to the application may be filed under 19
section 6. 20
(3) The application must be accompanied by any affidavit the 21
Commissioner intends to rely on at the hearing of the application. 22
(4) For the purposes of subsection (2) (b), it is sufficient if the 23
organisation is identified by specifying its name or the name by 24
which it is commonly known or by providing other particulars 25
about the organisation. 26
(5) The application, with any accompanying affidavit, must: 27
(a) be filed in the Court, and 28
(b) on filing, have as the return date for the hearing fixed by 29
the registrar of the Court a day within 35 days after the 30
filing, and 31
(c) after being filed, be served by the Commissioner on the 32
respondent: 33
(i) by personal service within 7 business days after the 34
filing, or 35
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Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9 Schedule 1
(ii) if personal service is not practicable, or if the 1
respondent is an unincorporated association or 2
group, by public notice within 10 days after the 3
filing. 4
(6) The Court may extend the return date under this section on such 5
conditions the Court considers appropriate. 6
6 Response by respondent 7
(1) The respondent may file a response to the application under this 8
Part. 9
(2) The response must set out the facts relied on by the respondent in 10
response to the application. 11
(3) The respondent must file the response at least 5 business days 12
before the return date fixed by the registrar of the Court. 13
(4) The response must be accompanied by any affidavit the 14
respondent intends to rely on at the hearing of the application. 15
7 Court may make a declaration 16
(1) The Court may make a declaration that the respondent is a 17
criminal organisation for the purposes of this Act if the Court is 18
satisfied that: 19
(a) the respondent is an organisation, and 20
(b) members of the organisation in New South Wales 21
associate for the purpose of organising, planning, 22
facilitating, supporting or engaging in serious criminal 23
activity, and 24
(c) the continued existence of the organisation is an 25
unacceptable risk to the safety, welfare or order of the 26
community in this State. 27
(2) In considering whether or not to make a declaration, the Court 28
must have regard to: 29
(a) the following information before the Court: 30
(i) information suggesting a link exists between the 31
organisation and serious criminal activity in New 32
South Wales, 33
(ii) any conviction for current or former members of the 34
organisation in New South Wales, 35
(iii) information suggesting current or former members 36
of the organisation in New South Wales have been, 37
or are, involved in serious criminal activity, whether 38
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Schedule 1 Amendment of Crimes (Criminal Organisations Control) Act 2012 No 9
directly or indirectly and whether or not the 1
involvement resulted in convictions, 2
(iv) information suggesting members of an interstate or 3
overseas chapter or branch of the organisation 4
associate for the purpose of organising, planning, 5
facilitating, supporting or engaging in serious 6
criminal activity, and 7
(b) anything else the Court considers relevant. 8
(3) A declaration may be made whether or not the respondent is 9
present or makes submissions. 10
(4) The Court may, for the purpose of making the declaration, be 11
satisfied that members of an organisation associate for the 12
purpose of organising, planning, facilitating, supporting or 13
engaging in serious criminal activity: 14
(a) whether all the members in New South Wales associate for 15
that purpose or only some of the members, and 16
(b) whether members in New South Wales associate for that 17
purpose for the same serious criminal activities or different 18
ones, and 19
(c) whether or not the members in New South Wales also 20
associate for other purposes. 21
(5) For the purposes of subsection (4) (a), the Court may act on the 22
basis of satisfaction that only some of the members in New South 23
Wales associate for the purpose mentioned in the subsection only 24
if the Court is satisfied that those members constitute a 25
significant group within the organisation in New South Wales, 26
either: 27
(a) in terms of their numbers, or 28
(b) in terms of their capacity to influence the organisation or 29
its members in New South Wales. 30
(6) A declared organisation is taken to include any organisation into 31
which the members substantially restructure themselves with or 32
without dissolving the organisation named in the declaration. 33
8 Notice of declaration 34
(1) As soon as reasonably practicable after a declaration is made 35
under this Part, the Commissioner must publish notice of the 36
declaration in the Gazette and in at least one newspaper 37
circulating throughout the State. 38
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(2) The declaration is of no effect until it is published under 1
subsection (1). 2
9 Duration of declaration 3
(1) A declaration under this Part remains in force for a period of 4
5 years after the day on which it is made, unless sooner revoked 5
or unless renewed. 6
(2) A change in the name or membership of a criminal organisation 7
does not affect the declaration. 8
10 Revocation of declaration 9
(1) The Court may revoke a declaration under this Part on an 10
application under this section. 11
(2) An application may be made by: 12
(a) the Commissioner, at any time, or 13
(b) the declared organisation or a member of the declared 14
organisation, subject to this section. 15
(3) An application must: 16
(a) be in writing, and 17
(b) set out the grounds on which the revocation is sought, and 18
(c) set out the information supporting the grounds on which 19
the revocation is sought. 20
(4) The application must be accompanied by any affidavit the 21
applicant intends to rely on at the hearing of the application. 22
(5) The Commissioner is a party to any proceedings for an 23
application by the declared organisation or a member of the 24
declared organisation. 25
(6) The applicant must serve a copy of the application, with any 26
accompanying affidavit, on the other party to the proceedings as 27
soon as reasonably practicable after the application is filed. 28
(7) If the Commissioner is the applicant, service on the other party 29
must be: 30
(a) by personal service, or 31
(b) if personal service is not practicable or the other party is an 32
unincorporated association or group, by public notice. 33
(8) The Court may revoke a declaration on the application of the 34
declared organisation or a member of the declared organisation 35
only if satisfied that there has been a substantial change in the 36
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nature or membership of the declared organisation to the extent 1
that: 2
(a) members of the organisation in New South Wales no 3
longer associate for the purpose of organising, planning, 4
facilitating, supporting or engaging in serious criminal 5
activity, and 6
(b) the continued existence of the organisation no longer 7
represents an unacceptable risk to the safety, welfare or 8
order of the community in this State. 9
(9) A declared organisation or a member of a declared organisation 10
may not apply for the revocation of a declaration until at least 11
3 years after the declaration is made. 12
(10) The total number of applications for revocation made by the 13
declared organisation and all members of the declared 14
organisation cannot be more than 2 during the first 5 years after 15
the declaration is made. 16
(11) As soon as reasonably practicable after the revocation or 17
expiration of a declaration, the Commissioner must publish 18
notice of the revocation or expiration in the Gazette and in at least 19
one newspaper circulating throughout the State. 20
11 Stated reasons for making or revoking declaration 21
(1) The Court is to provide a written statement of reasons for any 22
decision to make or revoke a declaration under this Part, or for 23
refusing an application for a declaration or the revocation of a 24
declaration. 25
(2) This section does not authorise or require the disclosure of 26
information if an obligation to maintain confidentiality exists 27
(whether under Part 3B or under any other Act or law). 28
12 Renewal or extension of declarations 29
(1) A declaration under this Part may be renewed at any time before 30
or after the declaration expires. 31
(2) For that purpose, the provisions of this Act applying to an 32
application for the making of a declaration apply as if reference 33
to the making of the declaration were a reference to the renewal 34
of the declaration. 35
(3) It does not matter how often declarations are renewed. 36
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13 Right of appeal 1
(1) Section 24 applies to a decision of the Court under this Part in the 2
same way it applies to a decision of the Court in relation to the 3
making of a control order. 4
(2) In that case, a reference to a controlled member is taken to be a 5
reference to a declared organisation. 6
[8] Sections 16 and 21 7
Omit "section 28" wherever occurring. Insert instead "Part 3B". 8
[9] Parts 3A and 3B 9
Insert after Part 3: 10
Part 3A Reciprocal recognition and enforcement of 11
declarations and orders 12
Division 1 Preliminary 13
27A Definitions 14
In this Part: 15
interstate control order means an order made under a provision 16
of a law of another State or Territory that is prescribed by the 17
regulations for the purposes of this definition. 18
interstate declaration means a declaration made under a 19
provision of a law of another State or Territory that is prescribed 20
by the regulations for the purposes of this definition. 21
registrar means a person who is: 22
(a) appointed in accordance with section 120 of the Supreme 23
Court Act 1970, and 24
(b) nominated by the Principal Registrar of the Court for the 25
purposes of this Part. 26
respondent means the organisation the subject of an interstate 27
declaration or the person the subject of an interstate control order 28
(as the case may be). 29
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Division 2 Registration of interstate declaration in New 1
South Wales 2
27B Application for registration of interstate declaration in New South 3
Wales 4
(1) The Commissioner may apply to the registrar for the registration 5
of an interstate declaration. 6
(2) An application for registration must: 7
(a) be made in writing, and 8
(b) be accompanied by an affidavit from the Commissioner 9
including or accompanied by the following: 10
(i) a copy of the interstate declaration, 11
(ii) enough information to satisfy the registrar that the 12
declaration is an interstate declaration that is in 13
force. 14
(3) An application for registration of an interstate declaration does 15
not need to be served on the respondent. 16
27C When interstate declaration cannot be registered 17
An application for registration of an interstate declaration cannot 18
be made, and an interstate declaration cannot be registered, if any 19
of the following apply to the declaration: 20
(a) the law of the jurisdiction in which the declaration was 21
made specifies a period within which the respondent may 22
appeal against the declaration, and that period is still 23
running, 24
(b) the determination of an application by the respondent for 25
leave to appeal against the declaration (whether made 26
before or after any appeal period has expired) is pending, 27
(c) the determination of an appeal by the respondent against 28
the declaration is pending. 29
27D Registration of interstate declaration 30
The registrar must register an interstate declaration that is the 31
subject of an application under this Division if the registrar is 32
satisfied of the following: 33
(a) that the declaration is in force, 34
(b) if the law of the jurisdiction in which the declaration was 35
made requires notice of the declaration to be published-- 36
that the requirement has been complied with, 37
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(c) if the law of the jurisdiction in which the declaration was 1
made requires notice of the declaration to be served on any 2
organisation, person or group of persons--that the 3
requirement has been complied with or is taken to have 4
been complied with, 5
(d) that section 27C does not prevent registration of the 6
declaration. 7
27E Period of registration 8
(1) On registering an interstate declaration, the registrar is to specify 9
the date on which the registration expires. 10
(2) The date specified by the registrar is to be the date on which the 11
interstate declaration would cease to be in force in the jurisdiction 12
in which it was made if it were not sooner revoked. 13
(3) The registration of the interstate declaration expires on the 14
specified date. 15
(4) Subsections (1)-(3) do not apply if, under the law of the 16
jurisdiction in which the interstate declaration was made, the 17
interstate declaration remains in force for an indefinite period, in 18
which case: 19
(a) on registering the declaration--the registrar is to specify 20
that the registration is in force for an indefinite period, and 21
(b) the registration of the interstate declaration does not 22
expire. 23
27F Notice of registration 24
(1) Not later than 2 business days after registering an interstate 25
declaration, the registrar must give the Commissioner a 26
certificate of the registration with a copy of the registered 27
interstate declaration attached. 28
(2) As soon as practicable after receiving a copy of the registered 29
interstate declaration, the Commissioner must: 30
(a) publish notice of the registration of the interstate 31
declaration in the Gazette and in at least one newspaper 32
circulating throughout the State, and 33
(b) give notice of the registration to the commissioner (by 34
whatever name called) of the police force or police service 35
of the State or Territory in which the interstate declaration 36
was made and, if the interstate declaration was made by a 37
court, a registrar of that court. 38
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27G Commencement and duration of registered interstate declaration 1
A registered interstate declaration: 2
(a) comes into force in New South Wales on the day after the 3
day on which notice of registration of the declaration is 4
published in the Gazette under section 27F, and 5
(b) remains in force in New South Wales until one of the 6
following occurs: 7
(i) the registration of the declaration expires in 8
accordance with section 27E, 9
(ii) the registration of the declaration is cancelled under 10
this Part. 11
27H Effect of registration of interstate declaration 12
(1) A registered interstate declaration that has come into force under 13
section 27G operates in New South Wales as if it were a 14
declaration made under Part 2. 15
(2) A change in the name or the membership of an organisation that 16
is the subject of a registered interstate declaration does not affect 17
its registration or effect in this State. 18
27I Cancellation of registration of interstate declaration on revocation 19
in jurisdiction where originally made 20
(1) This section applies to a registered interstate declaration if: 21
(a) the declaration is revoked in the jurisdiction in which it 22
was made, and 23
(b) the registrar receives notice of the revocation. 24
(2) On receiving notice of the revocation of the registered interstate 25
declaration, the registrar must: 26
(a) cancel the registration of the declaration without delay, 27
and the cancellation takes effect immediately, and 28
(b) give the Commissioner written notice of the cancellation. 29
27J Cancellation of registration of interstate declaration at request of 30
Commissioner 31
(1) The Commissioner may, at any time while an interstate 32
declaration is registered under this Part, apply to the registrar to 33
cancel the registration of the declaration. 34
(2) On receiving an application under this section, the registrar must: 35
(a) cancel the registration of the declaration without delay, 36
and the cancellation takes effect immediately, and 37
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(b) give the Commissioner written notice of the cancellation. 1
27K Cancellation of registration of interstate declaration by Court 2
(1) The Court may, on application by the respondent, cancel the 3
registration of an interstate declaration if satisfied that the 4
declaration should not have been registered in accordance with 5
this Part. 6
(2) The Commissioner is a party to the application. 7
(3) If the registration of an interstate declaration is cancelled under 8
this section, any control order made under this Act relating to a 9
member of the organisation that is the subject of the interstate 10
declaration on the basis of the declaration ceases to have effect. 11
(4) Nothing in this section authorises the Court to reconsider the 12
merits of the interstate declaration. 13
27L Notice of cancellation or expiry of registration of interstate 14
declaration 15
As soon as practicable after the registration of an interstate 16
declaration is cancelled under this Part or expires, the 17
Commissioner must: 18
(a) publish notice of the cancellation or expiration in the 19
Gazette and in at least one newspaper circulating 20
throughout the State, and 21
(b) give notice of the cancellation or expiration to the 22
commissioner (by whatever name called) of the police 23
force or police service of the State or Territory in which the 24
declaration was made and, if the declaration was made by 25
a court, a registrar of that court. 26
Division 3 Registration of interstate control order in 27
New South Wales 28
27M Application for registration of interstate control order in New 29
South Wales 30
(1) The Commissioner may apply to the registrar for the registration 31
of an interstate control order. 32
(2) An application for registration must: 33
(a) be made in writing, and 34
(b) be accompanied by an affidavit from the Commissioner 35
including or accompanied by the following: 36
(i) a copy of the interstate control order, 37
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(ii) enough information to satisfy the registrar that the 1
order is an interstate control order that is in force. 2
(3) The application must state: 3
(a) whether the Commissioner believes it is necessary for the 4
interstate control order to be adapted or modified for its 5
effective operation in New South Wales, and 6
(b) if so, the details of the adaptation or modification that the 7
Commissioner believes to be necessary. 8
(4) An application for the registration of an interstate control order 9
does not need to be served on the respondent. 10
27N When interstate control order cannot be registered 11
An application for registration of an interstate control order 12
cannot be made, and an interstate control order cannot be 13
registered, if: 14
(a) the respondent is subject to a control order or interim 15
control order under Part 3, or 16
(b) any of the following apply to the order: 17
(i) the law of the jurisdiction in which the order was 18
made specifies a period within which the respondent 19
may appeal against the order, and that period is still 20
running, 21
(ii) the determination of an application by the 22
respondent for leave to appeal against the order 23
(whether made before or after any appeal period has 24
expired) is pending, 25
(iii) the determination of an appeal by the respondent 26
against the order is pending. 27
27O Registration of interstate control order 28
(1) The registrar must register an interstate control order that is the 29
subject of an application under this Division if the registrar is 30
satisfied of the following: 31
(a) that the order is in force, 32
(b) that the order was served, or taken to be served, on the 33
respondent under the law of the jurisdiction where the 34
order was made, 35
(c) that section 27N does not prevent registration of the order, 36
(d) that the order does not need to be adapted or modified for 37
its effective operation in New South Wales. 38
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(2) If the registrar considers that the order needs to be adapted or 1
modified for its effective operation in New South Wales, the 2
registrar must refer the application to the Court. 3
27P Referral of application to Court for adaptation or modification 4
(1) If an application is referred to the Court under section 27O, the 5
Commissioner must serve a copy of the application, with any 6
accompanying affidavit, and an appearance notice, personally on 7
the respondent. 8
(2) The application may be heard in the respondent's absence if the 9
Court is satisfied that a copy of the application and an appearance 10
notice were served on the respondent under subsection (1). 11
(3) In this section: 12
appearance notice means a notice in writing stating the 13
following in relation to an interstate control order: 14
(a) that an application for the registration of the interstate 15
control order has been referred to the Court, 16
(b) when and where the application is to be heard, 17
(c) that the respondent is required to appear at the hearing, 18
(d) that the interstate control order, or the interstate control 19
order as varied by the Court, may be registered in the 20
respondent's absence if the respondent fails to appear at 21
the hearing. 22
27Q Determination of application for registration 23
(1) On hearing an application referred to it under section 27O, the 24
Court may direct the registrar to register the order: 25
(a) with any adaptations or modifications that the Court 26
considers necessary or desirable for its effective operation 27
in New South Wales, or 28
(b) without any adaptations or modifications. 29
(2) Before giving a direction under subsection (1), the Court must: 30
(a) be satisfied of the matters set out in section 27O (1) (a)-(c), 31
and 32
(b) consider: 33
(i) anything that could be considered by the Court if the 34
application were an application for a control order 35
under this Act, and 36
(ii) any changes in the respondent's circumstances since 37
the interstate control order was made. 38
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(3) The registrar must register the interstate control order in 1
accordance with the direction of the Court. 2
27R Period of registration 3
(1) On registering an interstate control order, the registrar is to 4
specify the date on which the registration expires. 5
(2) The date specified by the registrar is to be the date on which the 6
interstate control order would cease to be in force in the 7
jurisdiction in which it was made if it were not sooner revoked. 8
(3) The registration of the interstate control order expires on the 9
specified date. 10
(4) Subsections (1)-(3) do not apply if, under the law of the 11
jurisdiction in which the interstate control order was made, the 12
interstate control order remains in force for an indefinite period, 13
in which case: 14
(a) on registering the order--the registrar is to specify that the 15
registration is in force for an indefinite period, and 16
(b) the registration of the interstate control order does not 17
expire. 18
27S Notice of registration 19
(1) Not later than 2 working days after registering an interstate 20
control order, the registrar must give the Commissioner a 21
certificate of the registration with a copy of the registered 22
interstate control order attached. 23
(2) As soon as practicable after receiving a copy of the registered 24
interstate control order, the Commissioner must: 25
(a) serve a copy of the order personally on the respondent, and 26
(b) publish notice of the registration of the interstate control 27
order in the Gazette and in at least one newspaper 28
circulating throughout the State. 29
27T Commencement and duration of registered interstate control 30
order 31
A registered interstate control order: 32
(a) comes into force in New South Wales on the day on which 33
the respondent is served personally with a copy of the 34
order, and 35
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(b) remains in force in New South Wales until one of the 1
following occurs: 2
(i) the registration of the order expires in accordance 3
with section 27R, 4
(ii) the registration of the order is cancelled under this 5
Part. 6
27U Effect of registration of interstate control order 7
A registered interstate control order that has come into force 8
under section 27T operates in New South Wales as if it were a 9
control order made under Part 3 but the provisions of Part 3 (other 10
than Division 3) do not apply in relation to the registered 11
interstate control order. 12
27V Variation or revocation of interstate control order in jurisdiction 13
where originally made 14
(1) If an interstate control order is varied by a court in the jurisdiction 15
in which it was made: 16
(a) the variations to the order may be registered under this Part 17
in the same way as the interstate control order is registered, 18
whether the variations were made before or after 19
registration of the interstate control order, and 20
(b) the provisions of this Part apply accordingly with all 21
necessary modifications. 22
(2) Subsection (3) applies to a registered interstate control order if: 23
(a) the order is revoked by a court in the jurisdiction in which 24
the order was made, and 25
(b) the registrar receives notice of that revocation from an 26
officer of that court or from the Commissioner. 27
(3) On receiving notice of the revocation, the registrar must: 28
(a) cancel the registration of the order without delay, and the 29
cancellation takes effect immediately, and 30
(b) give the Commissioner written notice of that cancellation. 31
(4) As soon as practicable after receiving notice of the cancellation 32
of the registration of an interstate control order, the 33
Commissioner must serve a copy of the notice personally on the 34
respondent. 35
27W Cancellation of registration of interstate control order by Court 36
(1) The Court may, on application by the respondent, cancel the 37
registration of an interstate control order if satisfied that the 38
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control order should not have been registered in accordance with 1
section 27O. 2
(2) The Commissioner is a party to the application. 3
(3) If the registration of an interstate control order is cancelled under 4
this section, the interstate control order ceases to have effect in 5
New South Wales and the respondent is taken not to have 6
committed any offence under Division 3 of Part 3 as a controlled 7
member. 8
(4) Nothing in this section authorises the Court to reconsider the 9
merits of the interstate control order. 10
27X Cancellation of registration of interstate control order at request of 11
Commissioner 12
(1) The Commissioner may, at any time while an interstate control 13
order is registered under this Part, apply to the registrar to cancel 14
the registration of the order. 15
(2) On receiving an application under this section, the registrar must: 16
(a) cancel the registration of the order without delay, and the 17
cancellation takes effect immediately, and 18
(b) give the Commissioner written notice of the cancellation. 19
(3) As soon as practicable after receiving notice of the cancellation 20
of the registration of an interstate control order, the 21
Commissioner must serve a copy of the notice of cancellation 22
personally on the respondent. 23
27Y Registration of interstate control order cancelled automatically in 24
certain circumstances 25
The registration of an interstate control order under this Part is 26
immediately cancelled if: 27
(a) the person to whom the order relates becomes subject to a 28
control order or interim control order under Part 3, or 29
(b) the order was made in reliance on the person to whom it 30
relates: 31
(i) being a member of a particular organisation that is 32
subject to an interstate declaration that is no longer 33
in force, or 34
(ii) associating with a member of a particular 35
organisation that is subject to an interstate 36
declaration that is no longer in force. 37
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Part 3B Criminal intelligence 1
Division 1 Preliminary 2
28A Definitions 3
In this Part: 4
court staff includes a judge's associate, a police officer or other 5
officer providing Court security, a Court reporter and any other 6
person ordinarily used by the Court for the conduct of 7
proceedings. 8
criminal intelligence application means an application under 9
Division 3 for a declaration that particular information is criminal 10
intelligence. 11
criminal intelligence monitor means the criminal intelligence 12
monitor designated under Division 2. 13
declared criminal intelligence means information declared by 14
the Court under Division 3 to be criminal intelligence. 15
external agency means any of the following: 16
(a) the New South Wales Crime Commission, 17
(b) the Independent Commission Against Corruption, 18
(c) the Australian Federal Police, 19
(d) the Australian Crime Commission, 20
(e) a police force or service of another State or Territory, 21
(f) the Commissioner of Corrective Services, Department of 22
Attorney General and Justice, or an officer of another State 23
or Territory with functions substantially corresponding to 24
the functions of the Commissioner, 25
(g) another entity established under a law of another 26
jurisdiction, including a jurisdiction outside Australia, 27
declared by the regulations to be an external agency for the 28
purposes of this Part. 29
identifying information, about an informant, means any of the 30
following information: 31
(a) name, including any aliases, 32
(b) date of birth, 33
(c) current location, 34
(d) where the informant resides, 35
(e) a position held by the informant in an organisation. 36
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informant means any of the following: 1
(a) anyone who has given, to the NSW Police Force or to an 2
external agency, information that the Commissioner 3
reasonably believes is criminal intelligence, and who is not 4
a police officer or an officer of an external agency, 5
(b) a police officer, or officer of an external agency, who has 6
obtained information through the use of an assumed 7
identity. 8
informant affidavit means an affidavit under section 28H 9
or 28Q. 10
officer, of an external agency, includes a person employed by the 11
agency, seconded to the agency or engaged by the agency under 12
a contract for services. 13
relevant agency, in relation to information that is declared 14
criminal intelligence or that is the subject of a criminal 15
intelligence application, means: 16
(a) if the Commissioner obtained the information from an 17
external agency--that agency, or 18
(b) otherwise--the NSW Police Force. 19
substantive application means an application under this Act 20
other than a criminal intelligence application. 21
28B Objects of Part 22
The objects of this Part are to: 23
(a) allow evidence that is or contains criminal intelligence to 24
be admitted in applications under this Act without the 25
evidence: 26
(i) prejudicing criminal investigations, or 27
(ii) enabling the discovery of the existence or identity of 28
confidential sources of information relevant to law 29
enforcement, or 30
(iii) endangering anyone's life or physical safety, and 31
(b) prohibit the unlawful disclosure of particular criminal 32
intelligence. 33
Division 2 Criminal intelligence monitor 34
28C The criminal intelligence monitor 35
(1) The regulations may provide for the designation of a retired 36
judicial officer, or a person qualified to be appointed as a judicial 37
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officer, of any Australian jurisdiction to be the criminal 1
intelligence monitor under this Act. 2
(2) The regulations may impose restrictions on a lawyer who is or 3
was the criminal intelligence monitor representing a client who is 4
or was a respondent to an application under this Act or associated 5
with any such respondent. 6
28D Monitor's functions 7
The functions of the criminal intelligence monitor are as follows: 8
(a) to monitor each criminal intelligence application, 9
(b) to monitor each application to the Court under Part 2 or 3, 10
(c) to test, and make submissions to the Court about, the 11
appropriateness and validity of the monitored application. 12
28E Material to be given to monitor 13
(1) The Commissioner is to give to the criminal intelligence monitor 14
the following: 15
(a) a copy of any criminal intelligence application (or any 16
application to revoke a declaration of criminal 17
intelligence) and any supporting material, 18
(b) a copy of any application for the declaration of an 19
organisation under Part 2 or for a control order (or interim 20
control order) under Part 3 and any supporting material, 21
(c) a copy of any other material given to the Court by the 22
Commissioner during the hearing of any such application. 23
(2) However, this section does not apply to material to the extent it 24
discloses any identifying information about the informant. 25
(3) Material given to the criminal intelligence monitor may refer to 26
an informant by way of a unique identifier. 27
(4) The criminal intelligence monitor must: 28
(a) store the material in a secure place, and 29
(b) return the material to the Commissioner as soon as 30
practicable after the matter concerned is finalised. 31
(5) A criminal intelligence monitor is entitled to access to a record, 32
or to a transcript of a record, of a hearing at which the monitor 33
appears. 34
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28F Appearance and role of monitor at hearing 1
(1) This section applies to a hearing for an application at which the 2
criminal intelligence monitor appears. 3
(2) The monitor may: 4
(a) for the purpose of testing the appropriateness and validity 5
of the application: 6
(i) present questions for the applicant to answer, or 7
(ii) examine or cross-examine a witness, or 8
(b) make submissions to the Court about the appropriateness 9
of granting the application. 10
(3) However, the monitor must not make a submission to the Court 11
while a respondent or a legal representative of a respondent is 12
present. 13
(4) The Court may, in its discretion, exclude the monitor from the 14
hearing while a respondent or a legal representative of a 15
respondent is present. 16
(5) In this section: 17
present includes present by way of an audio-visual link or audio 18
link. 19
Division 3 Declarations of criminal intelligence 20
28G Application for declaration of criminal intelligence 21
(1) The Commissioner may apply to the Court for a declaration that 22
particular information is criminal intelligence, but only if the 23
Commissioner reasonably believes the information is criminal 24
intelligence. 25
(2) The application must: 26
(a) be in writing, and 27
(b) identify the information, and 28
(c) state the relevant agency for the information, and 29
(d) state: 30
(i) that the Commissioner seeks a declaration that the 31
information is criminal intelligence, and 32
(ii) the grounds on which the declaration is sought, and 33
(e) include an explanation of: 34
(i) the relevant agency's intelligence assessment 35
system, and 36
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(ii) the assessment of the information that was made 1
under the system. 2
(3) An affidavit to be relied on by the Commissioner at the hearing 3
of the application must be filed with the application. 4
(4) An affidavit to be relied on by the Commissioner at the hearing 5
of the application may contain statements based on information 6
and belief if the person making the affidavit states the sources of 7
the information and the grounds for the belief (despite any rule 8
relating to the admission of hearsay or other evidence in 9
proceedings before the Court). 10
(5) If any of the information has been provided by an informant, the 11
application and affidavits and other material filed with the 12
application need not include any identifying information about 13
the informant and identifying information about the informant 14
cannot otherwise be required to be given to the Court. 15
(6) In this section: 16
intelligence assessment system means a system for assessing 17
information relating to actual or suspected criminal activity 18
according to: 19
(a) the reliability of the source of the information, and 20
(b) the validity of the information. 21
28H Additional affidavit if informant relied on 22
(1) This section applies if the information that the Commissioner 23
applies to be declared criminal intelligence (the relevant 24
intelligence) was provided to the relevant agency by an 25
informant. 26
(2) The informant cannot be called or otherwise required to give 27
evidence. 28
(3) The Commissioner must, at any time before the hearing of the 29
application, file an affidavit by an officer of the relevant agency. 30
(4) The affidavit must: 31
(a) state: 32
(i) the relevant agency, and 33
(ii) the officer's position at the relevant agency, and 34
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(b) state that the officer reasonably believes, and has made all 1
reasonable efforts to ensure, the officer has full knowledge 2
of: 3
(i) the information held by the relevant agency about 4
the informant, and 5
(ii) the intelligence held by the relevant agency that was 6
provided by the informant, and 7
(c) state that the officer reasonably believes the relevant 8
agency has made all reasonable enquiries about the 9
existence, and to obtain the details, of any allegations of 10
professional misconduct against the informant, and 11
(d) contain the following information about the informant: 12
(i) the informant's full criminal history, including 13
pending charges, 14
(ii) any information held by the relevant agency about 15
allegations of professional misconduct against the 16
informant, 17
(iii) any inducements or rewards offered or provided to 18
the informant in return for assistance, 19
(iv) whether the informant was an adult or a child when 20
the informant provided the relevant intelligence to 21
the relevant agency, 22
(v) whether the informant was serving a term of 23
imprisonment or otherwise being held in custody 24
when the informant provided the relevant 25
intelligence to the relevant agency, and 26
(e) state: 27
(i) that the officer holds an honest and reasonable belief 28
that the relevant intelligence is reliable, and 29
(ii) the reasons for that belief. 30
(5) For the purposes of subsection (4) (d) (i), it is sufficient 31
description of a conviction or charge in the informant's criminal 32
history to state that the conviction or charge related to property, 33
violence or another stated matter, and if it involved dishonesty, 34
without providing further particulars of the offence to which the 35
conviction or charge relates. 36
(6) For the purposes of subsection (4) (d) (ii), it is sufficient to state 37
whether or not there have been any allegations of professional 38
misconduct against the informant and if any misconduct or 39
alleged misconduct involved dishonesty. 40
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(7) For the purposes of subsection (4) (d) (i) and (ii), the description 1
in the affidavit of a conviction or charge in the informant's 2
criminal history or an allegation of professional misconduct 3
against the informant: 4
(a) need not state the date of the conviction or charge or date 5
on which the offence was committed or is alleged to have 6
been committed or date on which the misconduct 7
happened or is alleged to have happened, but 8
(b) if it does not state such a date, must state the time of the 9
conviction, charge, offence, alleged offence, misconduct 10
or alleged misconduct as being in a stated period of not 11
more than 7 years. 12
(8) Other than information about the informant's criminal history or 13
an allegation of professional misconduct against the informant 14
given in the affidavit under subsections (4)-(7), information 15
about the informant's criminal history or an allegation of 16
professional misconduct against the informant cannot be required 17
to be given to the Court. 18
(9) Subsection (8) does not prevent further information being given 19
to the Court other than under a requirement. 20
(10) The requirement under subsection (4) (d) (i) to state the 21
informant's full criminal history applies only to the extent of the 22
information held by the relevant agency if: 23
(a) the agency is an external agency, and 24
(b) the affidavit states that the officer believes: 25
(i) the agency might not hold all the information 26
comprising the informant's criminal history, and 27
(ii) an officer of the agency: 28
(A) could not lawfully obtain further information 29
about the informant's criminal history, or 30
(B) could not obtain further information about the 31
informant's criminal history without 32
disclosing the identity of the informant. 33
28I Hearing ex parte 34
The Court must consider a criminal intelligence application 35
without notice of it having been given other than to the criminal 36
intelligence monitor. 37
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28J Criminal intelligence application heard first 1
(1) If the Commissioner relies on the relevant information for a 2
substantive application under this Act, the criminal intelligence 3
application must be decided first. 4
(2) Subsection (1) applies regardless of when the applications were 5
filed. 6
28K Special closed hearing 7
(1) The hearing of a criminal intelligence application is a closed 8
hearing to the extent provided under this section. 9
(2) To ensure the hearing is closed, the Court must exclude from it 10
all persons or particular persons other than the following: 11
(a) the applicant, 12
(b) the applicant's legal and other representatives, 13
(c) the criminal intelligence monitor, 14
(d) any witness who may be called to give evidence under this 15
Part, 16
(e) court staff necessary for the hearing. 17
(3) Before hearing the criminal intelligence application, the Court 18
must give a warning about the confidential nature of the 19
information and the unlawful disclosure offence under 20
section 28T. 21
28L Oral evidence by police officers and officers of external agencies 22
(1) With the Court's leave, a police officer who is not an informant 23
or an officer of an external agency who is not an informant may 24
be called at the hearing to give evidence and be cross-examined 25
by the Court or the criminal intelligence monitor. 26
(2) However, no question may be asked of the officer that could lead 27
to the disclosure of any identifying information about an 28
informant. 29
28M Deciding criminal intelligence application 30
(1) The Court may declare that information is criminal intelligence if 31
the Court is satisfied the information is criminal intelligence. 32
(2) In exercising its discretion to declare information to be criminal 33
intelligence, the Court may have regard to whether matters 34
mentioned in section 28B (a) (i)-(iii) outweigh any unfairness to 35
a respondent. 36
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(3) Subsection (2) does not limit the matters that the Court may 1
consider in exercising its discretion. 2
(4) If the information was provided to the relevant agency by an 3
informant, the Court may not declare that the information is 4
criminal intelligence unless some or all of the information is 5
supported in a material particular by other information before the 6
Court. 7
(5) The supporting information mentioned in subsection (4) may be 8
other information before the Court that is declared criminal 9
intelligence or that is the subject of a criminal intelligence 10
application. 11
(6) If the Court is not satisfied information is criminal intelligence or 12
proposes to exercise its discretion not to make the declaration, it 13
must, before deciding the application, give the Commissioner an 14
opportunity to withdraw it. 15
(7) In this section: 16
respondent means a respondent to any existing or possible 17
substantive application in which the information mentioned in 18
subsection (1) may be considered. 19
28N Duration of criminal intelligence declaration 20
(1) A criminal intelligence declaration takes effect when it is made. 21
(2) A criminal intelligence declaration remains in force until the 22
declaration is revoked. 23
28O Revocation of criminal intelligence declaration 24
(1) The Court may, at any time on application by the Commissioner, 25
revoke a criminal intelligence declaration. 26
(2) The application must state: 27
(a) the grounds on which the revocation is sought, and 28
(b) the information supporting the grounds on which the 29
revocation is sought. 30
(3) The application must be accompanied by any affidavit the 31
Commissioner intends to rely on at the hearing of the application. 32
(4) The Court must consider the application without notice of it 33
having been given other than to the criminal intelligence monitor. 34
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Division 4 Protection of declared criminal intelligence 1
for substantive hearings 2
28P Application of Division 3
(1) This Division applies if: 4
(a) a substantive application is filed, and 5
(b) any document filed with the application or filed in support 6
of the application contains declared criminal intelligence. 7
(2) If this Division applies to a substantive application, this Division 8
applies as well as any other provision of this Act relating to the 9
application. 10
28Q Additional matters if informant relied on in substantive hearing 11
(1) This section applies if the declared criminal intelligence was 12
provided to the relevant agency by an informant. 13
(2) The informant cannot be called or otherwise required to give 14
evidence. 15
(3) The Commissioner must, at any time before the hearing of the 16
substantive application, file an affidavit by an officer of the 17
relevant agency complying with section 28H (4)-(10). 18
(4) The substantive application and affidavits and other material 19
filed with the application need not include any identifying 20
information about the informant and identifying information 21
about the informant cannot otherwise be required to be given to 22
the Court. 23
28R Special closed hearing for consideration of intelligence 24
(1) The Court must order any part of the hearing of the substantive 25
application in which the declared criminal intelligence is to be 26
considered (the relevant part) to be a closed hearing to the extent 27
provided under this section. 28
(2) The Court must exclude from the relevant part all persons or 29
particular persons other than the following: 30
(a) the Commissioner, 31
(b) a police officer, 32
(c) an officer of an external agency from which the 33
Commissioner obtained any of the declared criminal 34
intelligence, 35
(d) the Commissioner's legal representatives and nominees, 36
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(e) the criminal intelligence monitor, 1
(f) court staff necessary for the hearing. 2
(3) Before the relevant part starts, the Court must give a warning 3
about the confidential nature of the declared criminal intelligence 4
and the unlawful disclosure offence under section 28T. 5
28S Oral evidence by police officers and officers of external agencies 6
(1) A police officer who is not an informant or an officer of an 7
external agency who is not an informant may be: 8
(a) called at the hearing of the substantive application to give 9
evidence including or about the declared criminal 10
intelligence, and 11
(b) cross-examined by the Court or the criminal intelligence 12
monitor. 13
(2) However, no question may be asked of the officer or the monitor 14
that could lead to the disclosure of any identifying information 15
about an informant. 16
Division 5 Protection from unlawful disclosure 17
28T Unlawful disclosure of criminal intelligence or information in 18
informant affidavit 19
(1) This section applies to any of the following: 20
(a) information that is or has ever been the subject of a 21
criminal intelligence application, 22
(b) information contained in an informant affidavit, 23
(c) declared criminal intelligence, the declaration for which 24
has not been revoked. 25
(2) A person must not disclose the information or intelligence unless 26
the disclosure is: 27
(a) made with lawful authority or excuse, or 28
(b) made only to the extent necessary to perform the person's 29
functions under or relating to this Act, or 30
(c) if the information is in an informant affidavit--by the 31
informant the subject of the affidavit. 32
Maximum penalty: 100 penalty units or imprisonment for 33
12 months, or both. 34
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(3) It is a defence to an offence against subsection (2) for the 1
defendant to prove: 2
(a) the information or intelligence was publicly available 3
when the disclosure was made, or 4
(b) that when the disclosure was made the defendant had an 5
honest and reasonable but mistaken belief that the 6
information or intelligence was not criminal intelligence. 7
(4) For the purposes of subsection (3) (b), it is not reasonable for the 8
defendant to hold the belief if the defendant received a warning 9
by the Court under this Part for the information or intelligence. 10
28U Registrar to secure information 11
(1) The registrar of the Court must seal the following documents and 12
store them in a secure place immediately upon their filing: 13
(a) a criminal intelligence application or any document filed in 14
support of the application, 15
(b) any document containing declared criminal intelligence 16
filed with or in support of a substantive application, 17
(c) any informant affidavit. 18
(2) The State Records Act 1998 does not apply to the documents. 19
(3) The documents must not be made available for inspection by 20
anyone other than: 21
(a) the registrar, or 22
(b) the presiding judge or judge's associate (or a judge hearing 23
an appeal or that judge's associate), or 24
(c) the criminal intelligence monitor, or 25
(d) a person conducting a review under Part 4, the Attorney 26
General or a person to whom the Commissioner or the 27
Attorney General authorises disclosure. 28
(4) However, the criminal intelligence monitor cannot inspect any 29
part of the documents to the extent they disclose any identifying 30
information about an informant. 31
(5) The registrar may: 32
(a) make electronic copies of the documents on a storage 33
device, and 34
(b) after the end day for the application: 35
(i) return the documents that have been copied to the 36
Commissioner, and 37
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(ii) store the storage device, unconnected to any 1
computer, in a secure place. 2
(6) This section applies even if the application concerned is 3
withdrawn or dismissed. 4
(7) This section ceases to apply if the criminal intelligence 5
declaration concerned is revoked. 6
(8) In this section: 7
end day, for the application, means: 8
(a) if the application ends before it is decided--the day the 9
application ends, or 10
(b) if the application is decided: 11
(i) the last day on which an appeal may be made against 12
the decision, or 13
(ii) if an appeal is made against the decision, the day the 14
appeal ends. 15
storage device does not include a device that is a computer hard 16
drive or other permanent part of a computer. 17
[10] Section 28 Criminal intelligence 18
Omit the section. 19
[11] Section 29 Protected submission 20
Omit the section. 21
[12] Section 31 Attorney General to be notified 22
Omit "Part 2 or 3" from section 31 (1). Insert instead "Part 2, 3 or 3B". 23
[13] Section 32A 24
Insert after section 32: 25
32A Hearsay evidence 26
(1) Information that is declared by the Court under Part 3B to be 27
criminal intelligence may be admitted in evidence in proceedings 28
before the Court under Part 2 or 3 despite any rule relating to the 29
admission of hearsay evidence. 30
(2) However, this section does not affect any rule or inherent 31
jurisdiction of the Court with respect to the relevance or 32
probative value of evidence or to procedural fairness. 33
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[14] Section 36 Proceedings for offences 1
Omit the note to the section. Insert instead: 2
Note. Offences under section 26 (1A) or (1B) or 26A remain indictable 3
offences. Chapter 5 of the Criminal Procedure Act 1986 requires those 4
offences to be dealt with summarily unless the prosecutor or defendant 5
elects to have them dealt with on indictment. 6
[15] Sections 37A and 37B 7
Insert after section 37: 8
37A Service of public notice 9
(1) This section applies if service by the Commissioner of an 10
application or other thing by public notice is required. 11
(2) For service by public notice to be effective, the Commissioner 12
must publish a notice in a newspaper circulating throughout the 13
State. 14
(3) The notice need only state the following: 15
(a) the general nature of the application or other thing, 16
(b) details to the extent practicable of the respondent or other 17
person for whom the notice was made, 18
(c) how copies of any relevant affidavit or other material may 19
be obtained or read. 20
37B Costs 21
(1) Each party to a proceeding for a declaration (or revocation of a 22
declaration) under Part 2 must bear the party's own costs for the 23
proceeding. 24
(2) However, the Court may award costs against a party who makes 25
an application the Court considers frivolous or vexatious. 26
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Crimes (Criminal Organisations Control) Amendment Bill 2013
Consequential amendment of other Acts Schedule 2
Schedule 2 Consequential amendment of other Acts 1
2.1 Commercial Agents and Private Inquiry Agents Act 2004 2
No 70 3
Section 4 Definitions 4
Insert ", or declared by the Supreme Court under that Act to be criminal 5
intelligence" after "2012" in the definition of criminal intelligence in 6
section 4 (1). 7
2.2 Liquor Act 2007 No 90 8
Section 4 Definitions 9
Insert ", or declared by the Supreme Court under that Act to be criminal 10
intelligence" after "2012" in the definition of criminal intelligence in 11
section 4 (1). 12
2.3 Motor Dealers Act 1974 No 52 13
Section 4 Definitions 14
Insert ", or declared by the Supreme Court under that Act to be criminal 15
intelligence" after "2012" in the definition of criminal intelligence in 16
section 4 (1). 17
2.4 Motor Vehicle Repairs Act 1980 No 71 18
Section 4 Definitions 19
Insert ", or declared by the Supreme Court under that Act to be criminal 20
intelligence" after "2012" in the definition of criminal intelligence in 21
section 4 (1). 22
2.5 Pawnbrokers and Second-hand Dealers Act 1996 No 13 23
Section 3 Definitions 24
Insert ", or declared by the Supreme Court under that Act to be criminal 25
intelligence" after "2012" in the definition of criminal intelligence in 26
section 3 (1). 27
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Crimes (Criminal Organisations Control) Amendment Bill 2013
Schedule 2 Consequential amendment of other Acts
2.6 Tow Truck Industry Act 1998 No 111 1
Section 3 Definitions 2
Insert ", or declared by the Supreme Court under that Act to be criminal 3
intelligence" after "2012" in the definition of criminal intelligence in 4
section 3 (1). 5
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