Northern Territory Explanatory Statements

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SERIOUS CRIME CONTROL BILL 2009


SERIOUS CRIME CONTROL BILL 2009

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL


SERIAL NO. 48

EXPLANATORY STATEMENT


GENERAL OUTLINE

This Bill is for an Act to provide for the making of declarations and orders for the purpose of disrupting and restricting the activities of persons who engage or have engaged in serious criminal activity and members of particular organisations, and for related purposes.

The Bill provides eligible judges to make declarations that an organisation is a declared organisation for the purposes of the Act.

The Bill provides for the Supreme Court to make control orders in relation to members of declared organisations or persons who engage or have engaged in serious criminal activity. The consequences of the orders is that the controlled member will commit an offence if he or she associates with another controlled member of the particular declared organisation and any authorisation to carry on certain specified activities will, on the making of an interim control order, be suspended, and on the making of a confirmatory control order, be cancelled. A control order can also impose specific restrictions on the person which, if breached, will constitute an offence.

The Bill also provides for public safety orders to be made by senior police officers and fortification removal orders to be made by the Court of Summary Jurisdiction.

The Bill also makes consequential amendments to the Bail Act, Criminal Code and to the Information Act.

Note: References in this explanatory statement to:

· “NSW” are references to the Crimes (Criminal Organisations Control) Act 2009 (NSW)
· “SA” are references to the Serious and Organised Crime (Control) Act 2008 (SA)

NOTES ON CLAUSES

Part 1 – Preliminary matters

Clause 1. Short title

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Serious Crime Control Act 2009.

Clause 2. Commencement

This clause provides, when read with the Interpretation Act, that the provisions of the Act commence on such day or days as are fixed by the Administrator by Gazette notice.

Clause 3. Main object of Act

This clause sets out the main objects of the Act. They are:

· the protection of members of the public from violence associated with serious criminal activity.
· the making of control orders to disrupt and restrict the activities of persons who:
a) engage, or have engaged, in serious criminal activity; or
b) are, or have been, members of declared organisations.
· allowing police officers to make public safety orders and courts to make fortification removal orders.

The clause sets out that it is not an objective of the Act to limit public advocacy, protest, dissent or workers’ industrial action.

Clause 4. Application of Part IIAA of Criminal Code

Part IIAA of the Criminal Code applies to an offence against this Act.

Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.

Clause 5. Extra-territorial operation

This clause makes clear that the proposed Act is intended to apply within the Northern Territory and outside the Territory to the full extent of the extra-territorial legislative capacity of the Northern Territory Legislative Assembly.

Part 2 - Definitions and key concepts

Clause 6. Definitions

This clause defines certain words and expressions used in the proposed Act.

The key definitions are:

“appropriate” – this is used in clauses 25, 26, 27, 32, 42, 50, 60, 64, 67, 72 and 85. It is designed to ensure that decision makers are entitled to have regard to all reasonable circumstances when making decisions regarding control orders, objections to control orders, the period of a public safety order, the making of an authorisation of public safety order by telephone, the making of fortification removal orders, objections to fortification removal orders, the selling or disposal of anything salvaged from a fortification removal, the making of consequential or ancillary orders and in undertaking annual review of the powers exercised under the Act.

“criminal intelligence” includes information relating to actual or suspected criminal activity regardless of where it occurs, the disclosure of which could reasonably be expected to:
· prejudice a criminal investigation; or
· enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement; or
· endanger a person's life or physical safety.

Criminal intelligence also includes information, the disclosure of which could reasonably be expected to reveal and prejudice the effectiveness of police information-gathering or surveillance methods or police procedures for preventing, detecting, investigating or dealing with matters arising out of breaches or evasions of the law.

“declared organisation" (being an organisation declared as such under section 18),

“member”, is defined as being a member of an organisation which includes:
· an associate member or prospective member (however described) of the organisation; and
· a person who identifies himself or herself, in any way, as belonging to the organisation; and
· a person who is treated by the organisation or members of the organisation as if he or she belongs to the organisation; and
· if the organisation is a body corporate – a director or an officer of the body corporate, as defined in section 9 of the Corporations Act 2001.

“organisation” means any incorporated body or unincorporated group (however structured) whether or not the body or group is based in or outside the Territory or consists of persons who are not ordinarily resident in the Territory or is part of a larger organisation (such as a club or chapter).

“serious criminal activity”, which is defined to mean the commission of serious criminal offences. A serious criminal offence is defined as an offence for which a law in force in the Territory provides a maximum penalty of imprisonment that is more than 2 years (other than an offence prescribed by regulation), or if the act or omission was committed outside the Territory, it would be an offence of this kind if it was committed in the Territory.


Clause 7. Declared organisation

This clause defines “declared organisation” as being an organisation in respect of which a declaration under section 18 is in force.

Clause 8. Control order and controlled person

This clause provides that a control order is an order made by the Supreme Court which prohibits a person from associating with other controlled persons and may also contain other restrictions contained in section 27.

The clause also defines a “controlled person” as being a person in respect of whom a control order or an interim control order is in force.

Clause 9. Public safety order and restriction period

This clause contains definitions of:

· “public safety order” – an order made by a “senior police officer” (as defined in section 6) that prohibits persons being at specified places. · “restriction period” – as being the period for which a public safety order is in force.

Clause 10. Fortification and fortification removal order

This clause contains definitions of:

· Fortification – as being a structure or device that does or may prevent or impedes police access; · fortification removal order – as being an order made by the Court of Summary Jurisdiction under section 60 ordering the removal of the fortification order.

Clause 11. Matters before commencement may be relevant

This clause provides that events that occurred before the commencement of the Act or outside of the NT are to count for the purposes of the Act.

Part 3 - Declared organisations

Division 1 Eligible judges

Clause 12. Consent to be, and declaration of, eligible judge [NSW, s.5]

This clause provides for Judges of the Supreme Court who consent to being eligible judges for the purposes of the proposed Act to be declared eligible judges by the Attorney-General.

The Attorney-General can amend or revoke the declaration of a judge as an eligible judge.

A judge can revoke consent to being declared as an eligible judge and would cease to be an eligible judge for the purposes of this Act. This would not affect any declaration made during the period in which the judge was an eligible judge.

The clause is designed to deal with legal issues of the kind considered by the High Court in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 (12 September 1996)


Division 2 Application for declaration and order for hearing of application

Clause 13. Commissioner may apply for declaration [NSW s.6]

This clause enables the Commissioner of Police to apply in writing to an eligible judge for a declaration in relation to a particular organisation and sets out the requirements for such applications.

These requirements include:

· the name or particulars of the organisation,
· the nature of the organisation,
· names of any persons reasonable believed to be involved,
· the grounds for the declaration,
· the details of any previous application.

The application must be supported by at least one affidavit from the Commissioner or another senior police officer. The affidavit must verify the contents of the application.

Clause 14. Eligible judge may make declaration, dismiss application or order hearing

This clause permits an eligible judge to make a declaration under section 18 without any mandatory hearing or any publication of the application. The eligible judge may make a declaration, dismiss the application or order a hearing be held and fix a date for hearing.

If the eligible judge orders a hearing, the Commissioner is required to publish a notice of the declaration application in a newspaper circulating within the Territory within 5 days of the order. The Commissioner must also serve a copy of the notice of declaration application on any person named as a member of the organisation specified in the application at least 7 days before the hearing date.

Clause 15. Submissions at hearing [NSW, s.8 and part 13]

This clause provides that where an eligible judge has ordered a hearing for a declaration application the persons referred to in the notice have the right to be present and to make submissions at the hearing unless information to be disclosed at the hearing involves classified criminal intelligence . Other persons such as any member or former member of the organisation who is not named in the application or a person who may be directly affected may also be present to make submissions with the leave of the eligible judge.

Provision is also made to enable ‘protected submissions’ to be made in private by a person named in the application or by other person directly affected by the application.

A protected submission is defined in clause 6 as being one made by a person who reasonably believes they may be subjected to a reprisal involving matters such as injury, intimidation, loss or harassment.

Clause 16. Rules of evidence do not apply

This clause provides that the rules of evidence do not apply to the hearing of an application for a declaration of an organisation.

Clause 17. Protected submission [NSW, s.29]

This clause provides protections for certain submissions. In particular the eligible judge must make arrangements to protect confidentiality.

However the Attorney-General and the Commissioner are entitled to be present when a protected submission is being made.

Division 3 Making and revoking declaration

Clause 18. Eligible judge may make declaration [NSW, s.9]

This clause enables the eligible judge to make the declaration sought by the Commissioner if the eligible judge is satisfied of both of the following:

· that members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and

· the organisation represents a risk to public safety and order.

This clause also sets out the matters that the eligible judge may take into account in deciding whether or not to make the declaration. These matters include information about criminal links, criminal convictions, information about interstate activities of the organisation, submissions made by persons mentioned in clause 15 or made by the Attorney-General.

In making such a decision the eligible judge does not need to be satisfied that all of members associate for serious criminal purposes.

However, the Judge must be satisfied that the criminal members are a significant presence.

Clause 19. Notice of declaration [NSW, s.10]

This clause requires that the Commissioner of Police give notice of the making of the declaration in the Gazette and in at least one newspaper circulating throughout the Territory as soon as practicable (but no later than 7 days) after the date of the declaration.

Clause 20. Eligible judge not required to provide reasons [NSW, s.13]

This clause provides that the eligible judge is not required, to provide grounds or reasons for the making of a declaration under section 18 or a determination made by the eligible judge under this Part other than to a person conducting a review under sections 85 or 86 if the person so requests.

Clause 21. Duration of declaration [NSW, s.11]

This clause provides that declarations last (unless revoked under clause 22) for a period of 10 years or any lesser period determined by the eligible judge.

The period starts on the day of publication of the Gazette notice in accordance with clause 21(1). The publication is the responsibility of the Commissioner of Police (see clause 19).

Clause 22. Revocation of declaration [NSW, s.12]

This clause provides a mechanism for the review of declarations of organisations.

It does this by providing for the revocation of declarations by an eligible judge. Either the Commissioner of Police or a member of the declared organisation can make the application.

A revocation application made by a person other than the Commissioner will not be successful unless the applicant can satisfy the eligible judge of a substantial change in the organisation. That is:

· that the members no longer associate for the purposes of serious criminal activity; or · the organisation no longer represents a risk to public safety and order in the NT.

An eligible judge may refuse to consider a revocation application if at least one revocation application has previously been made in relation to the declaration and the judge does not consider the revocation application sets out any new grounds for revocation.

On the making of a revocation the Commissioner must publish the details in the Gazette and in at least one newspaper circulating throughout the Territory as soon as practicable and give notice to the Attorney-General and any person who made a submission. If a member of the organisation for which a declaration is revoked is subject to any kind of control order, the order ceases to apply.

Part 4 – Control orders

Division 1 Making control order

Clause 23. Grounds for making control order

This clause sets out the grounds on which a control order may be made against a person. This clause also clarifies that a control order may be made against a person who is, or has been, a member of a declared organisation even if there is a revocation application in relation to the organisation that has yet to be decided.

Clause 24. Application for control order [part NSW, s.14]

This clause sets out that the Commissioner of Police may apply to the Supreme Court for the making of a control order. The contents of such an application must be verified by an affidavit from the Commissioner or another senior police officer. The Commissioner must have a reasonable belief that there is ground for making a control order in relation to the person.



Clause 25. Hearing of application by Supreme Court

This clause provides that at the hearing of an application for a control order, the Court may hear further information from the Commissioner in order to determine whether there is a ground for making a control order.

The Court must then make a control order or otherwise dismiss the application or adjourn the hearing if the affected person has not been given notice of the application prior to the hearing.

Clause 26. Adjourned hearing

This clause applies where the Supreme Court has ordered an adjournment of the hearing for an application for a control order.

At least 28 days prior to the adjourned hearing, the Commissioner is required to serve written notice on the relevant person. At the adjourned hearing, the Court is to determine whether there is a ground for the making of a control order after hearing evidence from the Commissioner and the relevant person. If the Court determines that there is no ground for the making of the control order, the Court must dismiss the application.

Clause 27. Control order may include prohibition, suspension of application or authority or exemption

If the Supreme Court considers it appropriate, the control order may prohibit the person from applying for an authority to carry on a specified prescribed activity or all prescribed activities. The Court can also prevent the person from doing any of the activities listed under the clause by suspending any authority (or application for an authority) to carry on a prescribed activity which is held by, or being applied for, by the person.

If an application or authority is suspended, the Commissioner must notify the relevant regulatory authority about the control order and suspension and that the authority is suspended even if the Act providing for the authority does not provide for a suspension of the authority.

The term “appropriate” is defined under clause 6 as “appropriate having regard to all reasonable circumstances”. “Prescribed activity” is also a defined term under clause 6.



Clause 28. Form of control order [NSW, s.21]

This clause sets out the details that are to be specified in the control order. It also provides that criminal intelligence is not to be disclosed in the control order and that an affidavit may be attached to the order once it has been edited to remove any criminal intelligence.

Clause 29. When does control order take effect [NSW, s.22]

This clause provides that a control order takes effect at the earlier of:

· the time when the order is made (if the person is in court at that time); or · the time when the person is served (in accordance with clause 76) with a copy of the order.

Clause 30. Duration of control order [NSW, s.23]

This clause provides that a control order lasts until it is revoked in accordance with clause 34.

Where the controlled person is a member or former member of a declared organisation and the declaration of the organisation is revoked, the control order will cease to have effect on the revocation of the declaration.

Division 2 Review of control order

Clause 31. Right of objection

This clause sets out that a person may object to the making of a control order by lodging a notice of objection within 14 days after the date on which the control order was served on the person or such longer period as the Supreme Court allows.

Clause 31(5) provides that the process outlined in this section overrides any generic provisions in the Supreme Court Act regarding reviews or appeals.


Clause 32. Procedure on hearing of objection

This clause clarifies that an objection does not affect the operation of the control order unless the Court orders the operation of the order is stayed until proceedings in relation to the objection end. The Court is required to consider the objection notice and may hear evidence by or for the controlled person and the Commissioner and determine whether there is a ground for making a control order.

If the Court determines there is a ground and it is appropriate to make the control order it must confirm or vary the control order. If there are no grounds or the Court considers that the making of the control order is not appropriate, the Court must revoke the control order.

Clause 33. Right of appeal [NSW, s.24]

This clause provides for appeals to the Court of Appeal by a controlled person against the making of a control order by the Supreme Court.

The Commissioner of Police may also appeal against a determination by the Supreme Court. There is an absolute right of appeal on questions of law or fact. An appeal must be commenced within 28 days after the date the control order takes effect unless leave is granted by the Court of Appeal to start an appeal after that time.

Fresh evidence may be given on an appeal. The appeal does not affect the operation of the control order to which the determination the subject of the appeal relates unless the Court orders that the operation of the order is stayed until the end of appeal proceedings.

The Court of Appeal may confirm, vary set aside the determination the subject of appeal and substitute its own determination and make any consequential or ancillary order.

Clause 34. Variation or revocation of control order [NSW, s.25]

This clause provides for the variation or revocation of control orders by the Supreme Court, on application by the Commissioner of Police or, with leave, the controlled person. The Supreme Court may grant leave if satisfied that there has been a substantial change in the relevant circumstances since the control order was made or last varied.

An application for variation or revocation of a control order made by the controlled person must be supported by oral evidence given on oath.

Clause 35. Notice of variation or revocation of control order [Part NSW, s.25]

This clause provides for notice of the variation or revocation of control orders, made by the Supreme Court or the Court of Appeal, to be given to the Attorney-General and to the Commissioner of Police and the controlled person, if not present in court.

This clause also provides that a variation takes effect:

· at the time when the order is made (if the controlled person is in court at that time); or · the time when the person is served (in accordance with clause 77) with a copy of the variation.

Division 3 Consequences of control order

Clause 36. Association between controlled persons

This clause makes it an offence for a controlled person to associate with another controlled person. The maximum penalty for breach is imprisonment for 5 years. The clause also sets out the forms of association that are to be disregarded when applying the section.

Clause 37. Recruiting person to become member of declared organisation [NSW s26A]

This clause provides that a controlled person who is a member of a declared organisation must not recruit another person to become a member of that organisation. The maximum penalty for breach is imprisonment for 5 years. The term “recruiting” is defined to include counseling, procuring, soliciting, inciting and inducing.

Clause 38. Application for authority in contravention of control order

This clause prohibits a controlled person from applying for an authority to carry on a prescribed activity specified in the control order. The penalty for contravening this provision is 50 penalty units or imprisonment for 6 months.

Clause 39. Other contravention of control order

This clause provides for the offence of engaging in conduct in contravention of a control order. The maximum penalty is imprisonment for 5 years.

Clause 40. Defence and evidence

This clause sets out that it is a defence to a prosecution for an offence against Division 3 if the defendant did not know he or she was a controlled person despite apparently being served in accordance with section 77. In effect this is so if the defendant can show that he or she was purportedly served where, in fact, the section 77 circumstances claimed did not actually exist.

This clause also provides that a control order made against a person is conclusive evidence of the terms of the order.

Clause 41. Authority for prescribed activity

This clause relates to authorities for the carrying on of prescribed activities. A controlled person is prohibited from applying for an authority to carry on a prescribed activity and any application is not a valid application.

Any proceedings under another Act relating to an authority that is suspended under section 27 is stayed while the authority is suspended.

This occurs despite any other Act, law, award or industrial or other agreement affecting the employment of the person holding the authority and neither the Territory nor the regulatory authority incurs any liability because of the suspension or stay. A suspension under this Act does not limit the power of a regulatory authority to reject an application or cancel or revoke the authority.

Part 5 - Public safety orders

Division 1 Making, varying and revoking public safety order

Clause 42. Senior police officer may make public safety order [SA, s.23 ]

This clause provides that a senior police officer may make a public safety order in respect of a person or a class of persons if he or she is satisfied that the presence of the person or persons at any premises or event, or within an area, poses a serious risk to public safety or security and such an order is appropriate in the circumstances.

The clause sets out the sorts of things the senior police officer must consider before making a public safety order. These include:

· whether the person or persons have behaved in a way that posed a serious risk to public safety or security in the past or have a history of engaging in serious criminal activity; · whether the person or persons are or have been members of a declared organisation or subject to a control order or associate or have associated with such persons; · if advocacy, protest, dissent or industrial action is the likely reason for the person or persons being present at a particular premises or event, or within a particular area, the public interest in maintaining the freedom to participate in such activities; · whether the degree of risk justifies the terms of the order, having regard to any legitimate reason the person or persons may have for being present at the particular premises, event or location; · the extent to which the making of the order will mitigate any risk to public safety or security; · whether there are other measures reasonably available to mitigate the risk; and · any other matters the police officer thinks fit.

An order must not prohibit a person from entering or being in premises that are the person's principal place of residence.

For the purposes of this clause a serious risk to public safety or security is where there is a serious risk that the presence of the person might result in the death of, or serious physical harm to, a person or serious damage to property or an animal.

“Serious damage” in relation to property is defined under this clause to include destruction, alteration which depreciates its value or rendering it useless or inoperative. Serious damage in relation to an animal includes injuring, wounding and killing the animal.

Clause 43. Limitations on making public safety order [SA, s.23]

This clause sets out that a public safety order is not to be made in respect of a person or a class of persons by a senior police officer:

· where the person is involved in a legitimate form of civil protest (eg non violent advocacy, protest, dissent or industrial action); and · where the officer believes that form of civil protest is the likely reason for the presence of the person at the premises.

Clause 44. Form of public safety order

This clause sets out the details that a public safety order must specify.

The order must, for individuals, specify the name and the address of the individual.

For a class of persons it is sufficient to identify the class.

Clause 45. Variation of public safety order by senior police officer [SA, s.24]

This clause sets out the matters that a senior police officer must have regard to in varying a public safety order.

If a public safety order is varied under this clause, the variation of the order is taken to be effective on the date of the variation.

Clause 46. When does public safety order take effect

A public safety order takes effect when the person is served with a copy of the order and a written notice specifying the date the order was made and, where applicable, a statement of the grounds on which the order or an authorisation order has been made and a brief explanation of the right of objection. The statement must not disclose criminal intelligence.

If the public safety order is served on a class of persons under section 78(1)(b), the order takes effect on the date of the Gazette published as stated in that paragraph.


Clause 47. Duration of public safety order

This clause provides that a public safety order remains in force until it is revoked or the end of the specified restriction period.

Clause 48. Revocation of public safety order [SA, s.24]

This clause sets out the circumstances in which a public safety order may, or must, be revoked. As soon as practicable after a person revokes a public safety order, the person must serve the notice on whom the order relates or if the order relates.

Division 2 Procedure for obtaining authorisation order

Clause 49. Particular public safety orders must be authorised by Court of Summary Jurisdiction [SA, s.25]

This clause provides that where a public safety order is required to be made for a period in excess of 72 hours, the senior police officer must obtain an authorisation from the Court of Summary Jurisdiction authorising the officer to make an order of that kind. The grounds of the application for authorisation must be verified by affidavit.

Clause 50. Application for authorisation order by telephone [SA, s.25]

This clause sets out the procedure to obtain an authorisation a Magistrate by telephone. Applications for authorisation of a safety order by telephone should only be used where it is impracticable for the senior police officer to make an application to the Court of Summary Jurisdiction.

Division 3 Review of public safety order

Clause 51. Right of objection [SA, s.26]

This clause sets out the process for a person to object to the making of a public safety order for a period exceeding 7 days or where the order does not commence on or immediately after service of the order under section 46 whether by service or publication in the Gazette.

Clause 51(5) provides that the process outlined in this section overrides any generic provisions in the Justices Act regarding reviews or appeals.


Clause 52. Procedure on hearing of notice of objection [SA, s. 27]

The Court of Summary Jurisdiction must, when hearing an objection, consider, in light of the evidence presented by the Commissioner and the objector:

· whether there were sufficient grounds for the making of the public safety order, · any variations to the order and

· any relevant authorisation order,

The Court may then confirm, vary, or rescind the public safety order and make any other consequential or ancillary orders.

Clause 53. Right of appeal [SA, s.28]

This clause provides that the Commissioner may appeal to the Supreme Court against a decision of the Court of Summary Jurisdiction on an application under clauses 43 and 49 (application for an authorisation order for periods longer than 72 hours).

In addition, either the Commissioner or an objector may appeal to the Supreme Court against a decision of the Court on a notice of objection.

An appeal lies as of right on a question of law or fact.

The procedures and timing of the appeal are to be in accordance with the Supreme Court Act.

The operation of a public safety order is not affected by the commencement of an appeal against a decision of the Court on a notice of objection.

On appeal, the Supreme Court may consider fresh evidence and confirm, vary or set aside the decision under appeal and substitute its own determination and make consequential or ancillary orders.

Clause 54. Notice of variation or rescission of public safety order by court

This clause provides for when a variation or rescission of a public safety order takes effect and the notice requirements in respect of such variation or rescission.

This clause applies where a public safety order is varied or rescinded as a result of a decision by the Court of Summary Jurisdiction under clause 52 or the Supreme Court under clause 53.

Division 4 Offence, enforcement and related matters

Clause 55. Contravention of public safety order [SA, s.32]

This clause provides that it is an offence to contravene or fail to comply with a public safety order. The person must have been aware that the act or omission would be a contravention of, or failure to comply with, the order or must have been reckless as to that fact, and must have intended to do the act.

There is a maximum penalty of 5 years imprisonment.

The clause also provides that it is a defence to a prosecution of a breach of an order that prohibits a person from entering or being in a particular area if the person can show he or she had a reasonable excuse for entering or being there or was not aware of the public safety order due to certain circumstances relating to the service of the order.

Clause 56. Power to search premises and vehicles [SA, s.33]

This clause provides the police with the power to search certain premises to which a public safety order relates if there are reasonable grounds to suspect a person to whom the order relates is present in the premises. The police officer may remain on the premises only for as long as is reasonably necessary to find out if the person is or has been on the premises.

The police may also stop and search a vehicle, or anything in or on a vehicle, if an officer suspects on reasonable grounds that a person in the vehicle is a person to whom a public safety order relates and the vehicle is approaching, is in, or has just left any premises specified in a public safety order.

Similarly, the police officer may detain a vehicle or person in a vehicle as long as is reasonably necessary to conduct the search and this action does not constitute an arrest of the person.

It is an offence for a person to fail to comply with a requirement of a police officer made for the purposes of this clause, with a maximum penalty of 5 years imprisonment.

Clause 57. Proof of public safety order [SA, s.34]

This clause provides that for the purposes of any legal proceedings, an apparently genuine document purporting to be a public safety order will be proof of the order and its terms unless there is proof to the contrary.

Part 6 - Fortification removal orders

Division 1 Making fortification removal order

Clause 58. Grounds for making fortification removal order

This clause sets out the grounds for when a fortification removal order may be made. Only one of the circumstances must apply for the making of a fortification removal order. These grounds are that the premises are fortified and it is reasonable to believe the premises are being, have been, or are likely to be, used:

· for, or in connection with, the commission of a serious criminal offence; or

· to conceal evidence of, or in connection with, the commission of a serious criminal offence; or

· to keep the proceeds of a serious criminal offence.

Another ground is where the premises are fortified and:

· are owned, either legally or beneficially, by a declared organisation or a member of a declared organisation; or

· are occupied or habitually used as a place of resort by members of a declared organisation.

Clause 59. Application for fortification removal order

This clause provides that the Commissioner may apply to the Court of Summary Jurisdiction for a fortification removal order in relation to specified premises and the grounds for the application must be verified by affidavit.

Clause 60. Court of Summary Jurisdiction may make fortification removal order

This clause provides that the Court of Summary Jurisdiction may make a fortification removal order in relation to premises if the Court is satisfied that there are sufficient grounds for the making of the order and it is considered appropriate to do so.

Otherwise, the Court is to dismiss the application.

A fortification order may be made on application by the Commissioner without notice to any other person.

Clause 61. Form of fortification removal order

This clause sets out the details and supporting documentation that a fortification removal order must provide. This includes a statement of the grounds on which the fortification removal order has been made. The statement of the grounds must not contain any information that has been classified by the Commissioner as criminal intelligence under the proposed Act.

Similarly, any information that is classified and contained in the affidavit must not be disclosed. An edited copy of the affidavit which has removed or erased the classified information may be attached to the fortification removal order.

Clause 62. Service of fortification removal order

This clause sets out the manner in which a fortification removal order must be served.

A fortification removal order must be served on the occupier or occupiers named in the order, and a copy of the order must be served on the owner (unless the owner is an occupier named in the order).

Service of an order is to be carried out in accordance with clause 77.

Division 2 Review of fortification removal order

Clause 63. Right of objection

A person on whom a fortification removal order has been served is entitled to lodge a notice of objection with the Court of Summary Jurisdiction.

However, a notice of objection cannot be lodged if a notice has already been lodged in relation to the order (unless proceedings in relation to the earlier notice are discontinued). The objector is required to include in the notice full details of the grounds for the objection and must lodge the notice of objection within 14 days after the date on which the fortification removal order was served on the objector. The objector must serve a copy of the notice on the Commissioner personally or by registered post at least 7 days before the hearing of the notice.

Clause 64. Procedure on hearing of notice of objection

Proceedings in relation to a notice of objection must, if convenient to the Court, be heard by the Magistrate or Justices who issued the fortification removal order.

After hearing evidence from the Commissioner and the objector, the Court must confirm or vary the order (and may make any ancillary or consequential orders) after considering whether the grounds on which an order may be issued have been satisfied.

If the Court determines that sufficient grounds do not exist for the making of the order, it must revoke the order (and may make any ancillary or consequential orders).

Clause 65. Right of appeal

A right of appeal to the Supreme Court lies against a decision of the Court on a notice of objection. The appeal lies as of right on a question of law or fact. Enforcement of a fortification removal order is stayed until the proceedings in relation to the appeal end.

Clause 66. Notice of variation or revocation of fortification removal order

This clause provides how notice is to be given where a fortification removal order has been varied or revoked by the Court of Summary Jurisdiction under clause 64 or by the Supreme Court under clause 65.

Division 3 Offence, enforcement and related matters

Clause 67. Enforcement

If an order is not withdrawn by the Commissioner or the Court, or set aside on appeal, and the fortifications are not removed or modified to the extent necessary to satisfy the Commissioner that there has been compliance with the order, the Commissioner may take action to enforce the order.

For the purposes of causing fortifications to be removed or modified, the Commissioner, or an authorised police officer, may enter the premises without warrant, obtain expert technical advice or make use of any person or equipment he or she considers necessary.

The Commissioner may seize anything that can be salvaged in the course of removing or modifying fortifications. Anything salvaged under this section may be sold or disposed of as the Commissioner thinks appropriate. The proceeds of any sale are forfeited to the Territory. If such proceeds are insufficient to meet costs incurred by the Commissioner under this section, the costs may be recovered from any person who caused the fortifications to be created.

Clause 68. Hindering removal or modification of fortifications

This clause provides that it is an offence to do anything with the intention of preventing, obstructing, interfering with or delaying the removal or modification of fortifications in accordance with a fortification removal order.

Subclause (1) applies in relation to the removal or modification of fortifications by a person who is the occupier or owner of the premises (or is acting on the instructions of the occupier or owner) or is a person who is acting in accordance with clause 67.

Clause 69. Liability for damage

No action lies for damage to property resulting from enforcement of a fortification removal order against the Territory or any person. However, an owner of premises may recover the reasonable costs associated with the repair or replacement of property damaged as a result of the creation of fortifications or enforcement of a fortification removal order as a debt from any person who caused the fortifications to be created.

Clause 70. Withdrawal notice

This clause provides for the process to withdraw a fortification removal order where the Commissioner decides not to enforce the fortification removal order.

Clause 71. Application of Part

This clause provides that if the provisions of Part 6 are inconsistent with any other Act or law, the provisions of Part 6 will prevail. It also makes clear that application for approval is not required under the Building Act for any work required by a fortification removal order.

The Building Act applies to the premises after work required by the fortification removal order is completed – that is, the building will need to comply with the Building Act in order to be lawfully occupied or otherwise used.

Part 7 - Miscellaneous

Clause 72. Court may make ancillary or consequential order

This clause provides that in determining a matter on appeal, a court may make any ancillary or consequential order it considers appropriate when determining a matter in relation to a control order, public safety order or fortification removal order.

Clause 73. Criminal intelligence [NSW s.28]

This clause provides protection for information classified by the Commissioner as criminal intelligence. Criminal intelligence is defined in clause 6.

In considering an application, objection or appeal to which this clause applies, the determining authority must takes steps to maintain the confidentiality of classified information provided to it by the Commissioner. This may include the receiving and hearing of evidence and argument in the absence of the parties to the proceedings, their representatives and the public if the determining authority considers that the classified information is criminal intelligence.

If the court does not consider the classified information to be criminal intelligence, it must allow the Commissioner to withdraw the classified information from consideration.

It is an offence to disclose criminal intelligence or classified information that has been withdrawn by the Commissioner. This offence is punishable by 5 years imprisonment or 2000 penalty units.

Clause 74. Attorney-General to be notified [NSW, s.31]

This clause provides that the Commissioner of Police must notify the Attorney-General of any applications made under Parts 3 and 4. It also states that the Attorney-General or a legal representative of the Attorney-General may be present and make submissions at the hearing of any application under those Parts.

Clause 75. Commissioner to keep register [NSW, s.30]

This clause provides that the Commissioner of Police is to keep a register of information relating to declared organisations controlled persons and fortification removal orders.

Clause 76. Provision of information relating to declared organisations [NSW s.30A]

This clause provides for the circumstances in which the Commissioner may enter into arrangements with a regulatory authority for supplying it with information contained in police records concerning any declared organisation, controlled person or any person who is an applicant for or holder of an authority under the regulatory legislation and who is a member, or an associate of, a member of a declared organisation.

Clause 77. Service of documents under this Act

This clause sets out the manner for service of documents to which this Act relates. A document required to be served under this legislation on a person may be served under section 25 of the Interpretation Act which sets out the default process for service.

However, if it is not reasonably practicable for a document to be served by these methods, the document may be served by affixing it to a prominent place at or near to the entrance to premises if the person serving the document reasonably believes the person on which service is to be made is present at the premises but is unable to gain access to the person to personally serve the document.

If a police officer is satisfied that an order (which includes a control order, public safety order or fortification removal order or a variation to those types of orders) should take effect in relation to a person to whom the order relates as a matter of urgency, the officer may tell the person the contents of the order and advise the person of where they can obtain a copy of the order and any document required by this Act to accompany the order.

On the person being told this information mentioned the order will be deemed to have been served on the person. The police officer who tells the person the contents of the order must ensure that the order and any document required to accompany the order is available for collection by the person at the advised place on the next business day during the ordinary business hours applicable to that place (i.e. the general police office business hours).

Clause 78 Service of a public safety order on a class of persons

This clause provides for the manner in which a public safety order or variation or revocation of a public safety order is to be served on a class of persons as mentioned in clause 46(1). A public safety order may be served separately on each member of the class or served on the class of persons by publishing the order and written notice in the Gazette.

Clause 79. Order for substituted service [NSW s.16A]

This clause provides that if it is not reasonably practicable for a document to be served under clause 77, the Commissioner may apply for an order for substituted service from the relevant court. The clause sets out those matters that are to be considered by the court in determining whether to order substituted service.

Clause 80. Delegation [SA, s.7]

This clause provides that a power or function of the Commissioner under this legislation must only be delegated to a person who is a senior police officer. However, the function of classifying criminal intelligence may only be delegated by the Commissioner to a Deputy Commissioner or Assistant Commissioner of Police.

This clause is intended to supplant the operation of section 14 of the Police Administration Act concerning the delegation of the functions and powers of the Commissioner of Police.

Clause 81. Protection from liability [SA, s.40]

This clause provides that no civil or criminal liability attaches to the Attorney-General, the Commissioner, a police officer or any person conducting a review under clause 85 or 86, in relation to an act or omission in good faith in the exercise or performance , or purported exercise or performance, of a power, function or duty conferred or imposed by or under this Act. The liability of the Territory is not affected.

This clause does not affect the operation of the Police Administration Act concerning actions against members of the Northern Territory Police Force.

Clause 82. Protection from proceedings [SA, s.41]

This clause excludes judicial review and all other proceedings and remedies (except as specifically provided in the Act).

Clause 83. Burden of proof [SA, s.5]

This clause provides that where a question of fact is to be decided by a court under this Act (other than in proceedings for an offence against this Act), that question is to be decided on the balance of probabilities.

Clause 84. Acquisition on just terms

This clause provides that if property would be acquired from a person because of the operation of the Act other than on just terms, the person is entitled to receive just terms compensation from the Territory as determined by a court of competent jurisdiction.

This clause relates to the prohibitions contained in section 50 of the Northern Territory (Self-Government) Act 1978 and section 51 (31) of the Australian Constitution.

Clause 85. Annual review [SA, s.37]

This clause requires the Attorney-General to appoint a retired judicial officer as defined in this clause to conduct an annual review of the exercise of powers under the Act, to be presented to the Attorney-General by 31 December each year immediately following the end of financial year.

The Attorney-General must table the report in the Legislative Assembly within 8 sittings days of receiving the report. The review must include a consideration of whether the powers have been exercised appropriately having regard to the objects of the Act.

The Attorney-General and the Commissioner of Police must ensure that the reviewer is provided with such information as he or she requires in order to conduct the review. Any information that has been classified by the Commissioner as criminal intelligence must be kept confidential.

Clause 86. Review of operation of Act [SA, s.38]

This clause provides that the Attorney-General must, as soon as practicable after the 4th anniversary of the commencement of the clause, conduct a review of the operation and effectiveness of the Act (the report of which must be tabled in the Legislative Assembly).

Any information that has been classified by the Commissioner as criminal intelligence must be kept confidential.

Clause 87. Regulations [SA, s.43]

The Administrator may make such regulations as are contemplated by, or necessary or expedient for the purposes of this legislation.

The Interpretation Act (sections 65-66) spells out what might be contained in such regulations

Part 8 - Consequential amendments

Clause 88. Amendment of Bail Act [SA, Sch1, Part 2]

This clause amends section 7A of the Bail Act by substituting a new subsection 7A(db) and (dc). The presumption against bail will now extend to an applicant taken into custody in relation to an offence of contravening or failing to comply with an interim control order, a control order, fortification removal order or public safety order; and to an applicant taken into custody in relation to an offence against section 103A of the Criminal Code.

Clause 89. Amendment of Criminal Code [SA, Sch1, Part 3]

This clause provides for the repeal and replacement of section 103A of the Criminal Code to provide for offences in respect of threats or reprisals relating to persons involved in criminal investigations or judicial proceedings or against public officers. The offences of making of threats or reprisals to persons involved in criminal investigations or judicial proceedings or public officers in the performance of his or her official duties or functions will attract a maximum penalty of 7 years imprisonment.

The clause also amends the schedule so that section 103A becomes subject to the operation of Part IIAA of the Criminal Code (principles of criminal responsibility)

Clause 90. Amendment of Information Act [SA, Sch1, Part 4]

This clause inserts a new section 49AA into the Information Act to provide that information that has been classified by the Commissioner of Police as criminal intelligence under the proposed legislation is exempt under section 44 of the Information Act.

Clause 91. Expiry of Part

This clause provides that Part 8 of the Bill will expire on the day after the commencement of the section. This occurs as the section will, by then, be spent in the sense that the amendments will have taken effect.

This clause is a device used by Parliamentary Counsel for the purpose of ensuing that the statute book does not contain provisions that no longer serve any purpose.

 

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