South Australian Numbered Acts South Australian Numbered Acts6—Substitution of Parts 2 and 3
Parts 2 and 3—delete the Parts and substitute:
Part 2—Declared organisations
8—Eligible Judges
(1) For the purposes of this Act, an "eligible Judge" is a Judge in relation to whom a consent is in force under subsection (2) and who has been selected by the Chief Justice to act as an eligible Judge in accordance with subsection (3).
(2) A Judge of the Court (including the Chief Justice) may, by instrument in writing, consent to being selected to act as an eligible Judge under this Act.
(3) The Chief Justice may, by instrument in writing, select a Judge in relation to whom a consent is in force under subsection (2) to act as an eligible Judge under this Act.
(4) An eligible Judge has, in relation to the exercise of a function conferred on an eligible Judge by this Act, the same protection, privileges and immunities as a Judge of the Court has in relation to proceedings in the Court.
(5) A Judge who has given consent under subsection (2) may, by instrument in writing, revoke the consent.
(6) A selection of a Judge to act as an eligible Judge under subsection (3) is revoked if—
(a) the eligible Judge revokes his or her consent in accordance with subsection (5) or ceases to be a Judge; or
(b) the Chief Justice determines that the Judge should not continue to be an eligible Judge.
(7) If an eligible Judge dealing with any proceedings under this Act dies, is absent or ceases to be an eligible Judge, the Chief Justice may, in accordance with subsection (3), select another Judge in relation to whom a consent is in force under subsection (2) to act as an eligible Judge under this Act for the purpose of continuing the proceedings.
(8) To avoid doubt, the selection of an eligible Judge to exercise a particular function conferred on eligible Judges is not to be made by the Attorney-General or other Minister of the Crown, and the exercise of that particular function is not subject to the control and direction of the Attorney-General or other Minister of the Crown.
9—Commissioner may apply for declaration
(1) The Commissioner may apply for a declaration under this Part in relation to an organisation.
(2) The application must—
(a) be in writing; and
(b) identify the particular organisation in respect of which the declaration is sought; and
(c) describe the nature of the organisation and any of its distinguishing characteristics; and
(d) set out the grounds on which the declaration is sought; and
(e) set out the information supporting the grounds on which the declaration is sought; and
(f) set out details of any previous application for a declaration in respect of the organisation and the outcome of that application; and
(g) be supported by at least 1 statutory declaration from a police officer of or above the rank of superintendent, verifying the contents of the application.
(3) The application may identify the organisation by specifying the name of the organisation or the name by which the organisation is commonly known or by providing other particulars identifying the organisation.
(4) The application must be lodged with the holder of an office prescribed by the regulations and that person must—
(a) as soon as practicable, notify the Chief Justice so that the Chief Justice can select an eligible Judge in accordance with section 8; and
(b) when an eligible Judge has been so selected, provide the application to the eligible Judge.
(5) On receiving an application that complies with this section, the eligible Judge must determine the date, time and place of the hearing of the application and notify the Commissioner of the matters referred to in section 10(1)(e).
(6) Subject to subsection (7), the Commissioner must make a copy of an application under this section, and any statutory declaration supporting the application, available for inspection by—
(a) any person who satisfies the Commissioner that he or she is a representative of the organisation; and
(b) any person who is alleged in a statutory declaration supporting the application to be a member or former member of the organisation; and
(c) any person who satisfies the Commissioner that he or she is a member or former member of the organisation or other person who may be directly affected (whether or not adversely) by the outcome of the application.
(7) Nothing in subsection (6) authorises or requires the disclosure of information properly classified by the Commissioner as criminal intelligence.
10—Publication of notice of application
(1) If the Commissioner makes an application under section 9 in relation to an organisation, the Commissioner must as soon as practicable (but no later than 3 days) after being given a notification by the eligible Judge under section 9(5) publish a notice in the Gazette and a newspaper circulating generally throughout the State—
(a) specifying that an application has been made for a declaration under this Part in respect of the organisation; and
(b) specifying that there may be serious consequences for members of the organisation and other persons if the declaration is made; and
(c) inviting interested parties to make or provide submissions to the eligible Judge at the hearing of the application; and
(d) specifying the manner in which interested parties may inspect or apply to inspect a copy of the application; and
(i) the date, time and place of the hearing, as determined by the eligible Judge; and
(ii) the requirements of the eligible Judge in relation to the provision of written submissions.
(2) In this section—
"interested party", in relation to an application, means an organisation or person who would, under section 15, be entitled to make an oral submission or provide a written submission to the eligible Judge at the hearing of the application.
11—Eligible Judge may make declaration
(1) The eligible Judge may make a declaration on an application made under this Part in relation to an organisation if the eligible Judge is satisfied that—
(a) members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and
(b) the organisation represents a risk to public safety and order in this State.
(2) In considering whether or not to make a declaration, the eligible Judge may have regard to the following:
(a) information suggesting that a link exists between the organisation and serious criminal activity;
(b) any convictions recorded against—
(i) current or former members of the organisation; or
(ii) persons who associate, or have associated, with members of the organisation;
(c) information suggesting that—
(i) current or former members of the organisation; or
(ii) persons who associate, or have associated, with members of the organisation,
have been, or are, involved in serious criminal activity, whether directly or indirectly and whether or not the involvement resulted in convictions;
(d) information suggesting that members of an interstate or overseas chapter or branch of the organisation (however described) associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity;
(e) anything else the eligible Judge considers relevant.
(3) A declaration may be made whether or not any of the persons who are entitled to make or provide submissions in relation to the application take advantage of that opportunity.
(4) Members of an organisation may "associate" for the purposes of this section in any manner including merely by being members of the organisation.
(5) The eligible Judge may, for the purposes of making the declaration, be satisfied that members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity—
(a) whether all the members associate for that purpose or only some of the members; and
(b) whether members associate for that purpose in relation to the same serious criminal activity or different serious criminal activity; and
(c) whether or not the members also associate for other purposes.
12—Notice of declaration
(1) As soon as practicable after the making of a declaration under this Part, the Commissioner must publish notice of the declaration in the Gazette and in a newspaper circulating generally throughout the State.
(2) The declaration is of no effect until notice of it is published under subsection (1).
13—Duration of declaration
A declaration made under this Part remains in force unless and until it is revoked in accordance with this Part.
14—Revocation of declaration
(1) An eligible Judge may, at any time, revoke a declaration made under this Part in relation to an organisation—
(a) on application by the Commissioner; or
(i) the organisation; or
(ii) a person who made or provided submissions in relation to the application for the declaration; or
(iii) with the permission of the eligible Judge—any other member or former member of the organisation or person directly affected (whether or not adversely) by the declaration.
(2) An application may not be made under subsection (1)(b) if—
(a) an application has been made in relation to the organisation under that paragraph (whether by the same or a different applicant) within the preceding period of 12 months; or
(b) an application has been made in relation to the organisation under that paragraph (whether by the same or a different applicant) and that application has not been finally determined.
(3) An application under subsection (1) must—
(a) be in writing; and
(b) set out the grounds on which revocation is sought; and
(c) set out the information supporting the grounds on which revocation is sought; and
(d) be supported by at least 1 statutory declaration from the applicant verifying the contents of the application.
(4) The application must be lodged with the holder of an office prescribed by the regulations and that person must—
(a) as soon as practicable, notify the Chief Justice so that the Chief Justice can select an eligible Judge in accordance with section 8; and
(b) when an eligible Judge has been so selected, provide the application to the eligible Judge.
(5) On receiving an application that complies with this section, the eligible Judge must determine the date, time and place of the hearing of the application and notify the Commissioner and, in the case of an application under subsection (1)(b), the applicant of the matters referred to in subsection (7)(d).
(6) If an application is made under subsection (1)(b), the applicant must, as soon as practicable after being given the notification by the eligible Judge under subsection (5), serve on the Commissioner a copy of the application and any supporting statutory declaration.
(7) If an application is made under subsection (1), the Commissioner must publish a notice in the Gazette and a newspaper circulating generally throughout the State—
(a) specifying that an application has been made for revocation of a declaration under this Part in respect of the organisation; and
(b) inviting interested parties to make or provide submissions to the eligible Judge at the hearing of the application; and
(c) specifying the manner in which interested parties may inspect or apply to inspect a copy of the application; and
(i) the date, time and place of the hearing, as determined by the eligible Judge; and
(ii) the requirements of the eligible Judge in relation to the provision of written submissions.
(8) The Commissioner must publish the notice required under subsection (7)—
(a) if the application has been made under subsection (1)(a)—not later than 3 days after being given the notification by the eligible Judge under subsection (5); or
(b) if the application has been made under subsection (1)(b)—not later than 7 days after being served with the material referred to in subsection (6).
(9) A declaration may be revoked on an application under subsection (1) only if the eligible Judge is satisfied that, as at the time at which the application for revocation is made and heard, there would not be grounds for the making of a declaration in relation to the organisation.
(10) The Commissioner must, as soon as practicable after a declaration is revoked—
(a) make reasonable efforts to give notice of the revocation to any person who made or provided a submission in relation to the making of the declaration; and
(b) publish notice of the revocation in the Gazette and in a newspaper circulating generally throughout the State.
(11) In this section—
"interested party", in relation to an application, means an organisation or person who would, under section 15, be entitled to make an oral submission or provide a written submission to the eligible Judge at the hearing of the application.
15—Submissions at hearings
(1) At the hearing of any application under this Part, the Commissioner and the organisation to which the application relates are entitled to make oral submissions, personally or through a legal representative, to the eligible Judge and, with the permission of the eligible Judge, to provide, in accordance with any requirements of the eligible Judge, written submissions.
(2) At the hearing of any application under this Part, a member or former member of the organisation to which the application relates and any other person who may be directly affected (whether or not adversely) by the outcome of the application may—
(a) provide, in accordance with any requirements of the eligible Judge, written submissions; and
(b) with the permission of the eligible Judge—make oral submissions, personally or through a legal representative, to the eligible Judge.
(3) A person referred to in subsection (2) who does not wish to appear at the hearing may, at any time before the date fixed for the hearing, apply to the eligible Judge to make a protected submission.
(4) An application to make a protected submission must—
(a) be in writing and be lodged with the holder of an office prescribed by the regulations; and
(b) set out the grounds on which the person believes that his or her proposed submission would be a protected submission within the meaning of this section; and
(c) include any other prescribed information.
(5) If the eligible Judge is satisfied that a person who has applied to make a protected submission under this section is eligible to make such a submission, the eligible Judge must notify the person, and the Commissioner, of that fact and of the arrangements that are to be made for the making of the submission.
(6) The eligible Judge is to take steps to maintain the confidentiality of a protected submission, including steps—
(a) to ensure that other persons referred to in subsection (2) (or their legal representatives) are not made aware of—
(i) the fact that the submission was made; or
(ii) any details contained in, or relating to, the protected submission; and
(b) to hear the submission in private in the absence of other persons referred to in subsection (2) (or their legal representatives).
(7) The Commissioner, or a legal representative of the Commissioner, is entitled to be present when a protected submission is made.
(8) The holder of the office referred to in subsection (4)(a), the Commissioner and any other person who, in the exercise of official functions or powers, knows of the making of, hears or otherwise has access to a protected submission must not disclose—
(a) the fact that the submission was made; or
(b) any details contained in, or relating to, the protected submission,
(except to the Attorney-General, the eligible Judge, a court or a person to whom the eligible Judge or the person making the protected submission authorises its disclosure or as may otherwise be required in the course of exercising such official functions or powers).
Maximum penalty: Imprisonment for 2 years.
(9) The duties imposed on an eligible Judge in relation to a protected submission by subsection (6) also apply to any court dealing with the protected submission.
(10) A statutory declaration may be provided to the eligible Judge (in accordance with any requirements of the eligible Judge) verifying—
(a) any matter referred to in an oral or written submission made to the eligible Judge under this section; or
(b) any grounds on which a person believes that his or her proposed submission would be a protected submission.
(11) In this section—
"protected submission" means an oral or written submission made by a person who has reasonable grounds to believe that he or she may be subjected to action (whether directly or indirectly) comprising or involving injury, damage, loss, intimidation or harassment in reprisal for making the submission.
16—Reasons to be published in Gazette
(1) An eligible Judge must, as soon as practicable after making a declaration or decision under this Part—
(a) make available (in such manner as the eligible Judge thinks fit) reasons for the declaration or decision to the Commissioner, the organisation to whom the declaration or decision relates and other persons who made or provided submissions in relation to the declaration or decision; and
(b) ensure that written reasons for the declaration or decision are published in the Gazette.
(2) Nothing in this section authorises or requires the disclosure of information by an eligible Judge where an obligation to maintain the confidentiality of the information otherwise exists (whether under section 5A, section 15(6) or some other Act or law).
17—Making of subsequent declaration
For the avoidance of doubt, nothing prevents the making of a declaration in relation to an organisation that has been the subject of a previous declaration which has been revoked.
18—Practice and procedure
(1) The practices and procedures of an eligible Judge are to be as determined by the eligible Judge.
(2) The rules of evidence do not apply to proceedings before an eligible Judge under this Act.
19—Regulations
The regulations may—
(a) make provision in relation to the manner in which records of proceedings before an eligible Judge are to be dealt with, including—
(i) the custody of such records; and
(ii) access to such records; and
(b) prescribe, and provide for the payment of, fees in respect of proceedings before an eligible Judge or any step in such proceedings or access to records of such proceedings.
20—Change of name etc
(1) A change in the name or membership of a declared organisation does not affect the organisation's status as a declared organisation.
(2) If the members of a declared organisation substantially re-form themselves into another organisation, that organisation is taken to form a part of the declared organisation (whether or not the organisation named in the declaration is dissolved).
21—Evidentiary
In any proceedings before a court, an apparently genuine document purporting to be signed by the Commissioner and to certify that a specified organisation was, on a specified date, a declared organisation constitutes, in the absence of proof to the contrary, proof of the matter so certified.
Part 3—Control orders
22—Court may make control order
(1) The Commissioner may apply to the Court for the making of a control order relating to a person (the "respondent").
(2) The Court may, on application by the Commissioner, make a control order relating to the respondent if the Court is satisfied that—
(a) the respondent is a member of a declared organisation; or
(b) the respondent—
(i) has been a member of an organisation which, at the time of the application, is a declared organisation; or
(ii) engages, or has engaged, in serious criminal activity,
and associates or has associated with a member of a declared organisation; or
(c) the respondent engages, or has engaged, in serious criminal activity and associates or has associated with other persons who engage, or have engaged, in serious criminal activity,
and that the making of the order is appropriate in the circumstances.
(3) In proceedings under this section—
(a) the Commissioner and the respondent are parties to the proceedings; but
(b) the Court may, if satisfied that the application has been served on the respondent, hear and determine the proceedings whether or not the respondent chooses to participate in the hearing.
(4) If the Commissioner requests the making of an interim control order without notice to the respondent under section 22A, the Court may order that service of the application (and any material to be served with the application) on the respondent under this section be delayed until the Court has determined that request.
(5) A control order may prohibit the respondent from any 1 or more of the following:
(a) associating with a specified person or persons of a specified class;
(b) holding an authorisation to carry on a prescribed activity while the control order remains in force;
(c) being present at, or being in the vicinity of, a specified place or premises or a place or premises of a specified class;
(d) possessing a specified article or weapon, or articles or weapons of a specified class;
(e) carrying on his or her person more than a specified amount of cash;
(f) using for communication purposes, or being in possession of, a telephone, mobile phone, computer or other communication device except as may be specified;
(g) engaging in other conduct of a specified kind that the Court considers could be relevant to the commission of serious criminal offences.
(6) If the Court prohibits a respondent from holding an authorisation to carry on a prescribed activity—
(a) any such authorisation held by the respondent is revoked from the date on which the control order takes effect or a later date specified by the Court; and
(b) if the revocation is to take effect on a later date—the Court may impose any further prohibition it thinks fit on the respondent in relation to the conduct of the activity to which the authorisation relates until the revocation takes effect; and
(c) the revocation is effected despite any other Act or any law, award or industrial or other agreement affecting the employment of the respondent, and neither the Crown nor the authority that issues an authorisation incurs any liability because of the revocation.
(7) In determining an application for a control order, the Court may have regard to the following:
(a) whether the respondent's behaviour, or history of behaviour, suggests that there is a risk that the respondent will engage in serious criminal activity;
(b) the extent to which the order might assist in preventing the respondent from engaging in serious criminal activity;
(c) the prior criminal record (if any) of the respondent and any person specified in the application as a person with whom the respondent associates or has associated;
(d) any legitimate reason the respondent may have for associating with any person specified in the application;
(e) any other matter that, in the circumstances of the case, the Court considers relevant.
(8) For the purposes of this section, a person may "associate" with another person by any means including communicating with that person by letter, telephone or fax or by email or other electronic means.
"authorisation" includes the licensing, registration, approval, certification or any other form of authorisation required by or under legislation for the carrying on of an occupation or activity;
"occupation" means an occupation, trade, profession or calling of any kind that may only be carried on by a person holding an authorisation;
"prescribed activity" means an occupation or activity of a kind prescribed by regulation for the purposes of this definition.
22A—Interim control orders
(1) The Court may, on an application under section 22, make an interim control order if the Court is satisfied that, on the basis of the application and any evidence tendered by the Commissioner, the Court could make a control order under section 22 in relation to the respondent.
(a) may be made without notice to the respondent; and
(b) may include any prohibition that may be included in a control order.
(3) Section 22(6) applies in relation to an interim control order as if it were a control order.
22B—Duration of control order or interim control order
(1) A control order or interim control order takes effect—
(a) if the respondent or a legal representative of the respondent is present when the order is made—on the making of the order; or
(b) otherwise—when the Commissioner serves the order on the respondent.
(2) Service under subsection (1)(b) must be by personal service.
(3) Subject to section 22H, a control order remains in force—
(a) for the period of time (if any) specified in the order; or
(b) until the order is revoked in accordance with section 22C,
(whichever occurs first).
(4) Subject to sections 22D and 22H, an interim control order remains in force for the period specified in the order and any further period specified by the Court.
22C—Variation or revocation
(1) The Court may make an order varying a control order (a "variation order") or revoking a control order (a "revocation order") on application—
(b) by the respondent.
(2) An application may only be made under subsection (1)(b) with the permission of the Court and permission is only to be granted if the Court is satisfied, on the basis of the application and any evidence tendered by the respondent, there has been a substantial change in the relevant circumstances since the control order was made or last varied.
(3) An application made under subsection (1)(b) must be supported by oral evidence given on oath.
(4) Subject to this section, in proceedings for the variation or revocation of a control order—
(a) the Commissioner and the respondent are parties to the proceedings; but
(b) in the case of an application under subsection (1)(a), the Court may, if satisfied that the application has been served on the respondent, hear and determine the proceedings whether or not the respondent chooses to participate in the hearing.
(5) The Court may, on an application under subsection (1)(a), make an interim variation order if the Court is satisfied that, on the basis of the application and any further information provided or evidence tendered by the Commissioner, it would be appropriate for the Court to vary the control order made in relation to the respondent.
(6) An interim variation order—
(a) may be made without notice to the respondent; and
(b) remains in force until further order of the Court.
(7) In determining an application under this section the Court may have regard to the same matters that the Court may have regard to in determining an application for a control order.
(8) If a revocation order is made, or a variation order is made on application under subsection (1)(b), the revocation or variation order has effect immediately on the making of the order or at such later time as may be specified by the Court in making the order.
(9) If a variation order or interim variation order is made on application under subsection (1)(a), the order has effect—
(a) if the respondent or a legal representative of the respondent is present when the variation order or interim variation order is made—on the making of the order; or
(b) otherwise—when the Commissioner serves the order on the respondent.
(10) Service under subsection (9)(b) must be by personal service.
22D—Right to object if interim order made ex parte
(1) This section only applies if an interim control order or interim variation order has been made without notice to the respondent.
(2) The respondent may, within 14 days of service of the interim control order or interim variation order or such longer period as the Court may allow, lodge a notice of objection with the Court.
(3) A copy of the notice of objection must be served by the respondent on the Commissioner by registered post at least 21 days before the day appointed for hearing of the notice.
(4) The Court must, when determining a notice of objection, consider whether, on the basis of the notice and any further information provided or evidence tendered by the Commissioner, the Court could make a control order under section 22 in relation to the respondent or a variation order under section 22C in relation to the control order.
(5) The Court may, on hearing a notice of objection, confirm, vary or revoke the interim control order or interim variation order.
22E—Consequential and ancillary orders
(1) The Court may, on making a control order or variation order or an interim control order or variation order, make any consequential or ancillary orders it thinks fit, including, in a case where the order prohibits the possession of an article or weapon or an article or weapon of a specified class, orders—
(a) providing for the surrender or confiscation of the article or weapon or such an article or weapon; and
(b) if the circumstances of the case so require, authorising a police officer—
(i) to enter and search and, if necessary, use reasonable force to break into or open—
(A) premises or a vehicle in which the article or weapon, or such an article or weapon is suspected to be; or
(B) part of, or anything in or on, premises or a vehicle in which the article or weapon, or such an article or weapon is suspected to be; and
(ii) to take possession of the article or weapon, or such an article or weapon.
(2) An article or weapon surrendered or confiscated under subsection (1) is forfeited to the Crown and may be sold or disposed of as the Minister thinks fit unless the Court orders that the article or weapon is to be returned to the respondent when the control order or interim control order lapses or is revoked.
22F—Appeal
The commencement of an appeal under the Supreme Court Act 1935 against an order made under this Part does not, of itself, affect the operation of the order to which the appeal relates.
22G—Evidentiary
(1) Subject to this section, in any proceedings under this Part —
(a) transcripts of evidence or documents tendered in evidence, or material otherwise relied on by a court, in proceedings in which a person has been convicted of an offence; and
(b) evidence or documents relating to the factual basis on which a person was convicted and sentenced for an offence,
will be admissible, and the Court may draw any conclusions of fact that it considers proper from the evidence, document or other material.
(2) Subject to this section, in any proceedings under this Part, an apparently genuine document purporting to be a police record of a person's antecedents or criminal history will be admissible without further proof as evidence of the facts referred to in the document, or to be inferred from the document.
(3) An affidavit of a police officer of or above the rank of superintendent will be admissible in evidence for the purpose of proving that evidence, a document or other material is of a kind referred to in subsection (1) or (2).
(4) Evidence, a document or other material will not be admitted in evidence under subsection (1) or (2) if the Court is of the opinion—
(a) that the person by whom, or at whose direction, the evidence, document or material was prepared can and should be called by the party tendering the evidence, document or material to give evidence of the matters contained in the evidence, document or material; or
(b) that the evidentiary weight of the evidence, document or material is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the evidence, document or material in evidence; or
(c) that it would be otherwise contrary to the interests of justice to admit the evidence, document or material in evidence.
(5) In any proceedings under this Part, an apparently genuine document purporting to be remarks made by a court in—
(a) sentencing a person for an offence; or
(b) giving reasons for upholding or dismissing an appeal—
(i) against a sentence for an offence; or
(ii) against a conviction for an offence where the conviction is upheld,
as to the facts which the court accepts or finds to have been established in the proceedings for the offence will be admissible without further proof, if relevant to an issue in the proceedings, as evidence of those facts.
(6) In determining whether to admit any material in evidence under this section, the Court may receive evidence by affidavit of any matter pertaining to the admission of that material.
(7) For the purpose of determining the evidentiary weight, if any, of material admitted in evidence under this section, consideration may be given to the source from which the material was produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(8) Nothing in this section limits the material that might be admissible in proceedings under this Part.
22H—Automatic revocation of order
Without derogating from any power of the Court under this Part, if a control order or interim control order is made in relation to a person in reliance on the person’s membership of a particular declared organisation or the person’s association with a member of a particular declared organisation, the order is revoked when the declaration for the declared organisation is no longer in force.
22I—Offence to contravene or fail to comply with control order
(1) A person who contravenes or fails to comply with a control order or interim control order is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(2) A person does not commit an offence against this section in respect of an act or omission unless the person knew that the act or omission constituted a contravention of, or failure to comply with, the order or was reckless as to that fact.