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Criminal Organisation Bill 2009
Criminal Organisation Bill 2009
Explanatory Notes
Objectives of the Bill
The Bill seeks to disrupt and restrict the activities of organisations involved
in serious criminal activity and to disrupt and restrict the activities of the
members and associates of such organisations who are involved in serious
criminal activity. It is not intended that the powers under the Bill will be
exercised in a way that diminishes the freedom of persons to participate in
advocacy, protest, dissent or industrial action.
Reasons for the Bill
The structure and methods of organised crime pose a challenge to the
criminal justice system which is generally designed to prosecute and
punish isolated crimes committed by individuals. A successful prosecution
of one or even more members of an organisation may have little effect on
the criminal operations of the organisation as a whole. Further, successful
prosecutions of organised criminal groups may be hindered by intimidation
and violence towards witnesses and investigators.
The Bill provides an alternative mechanism in combating organised
criminal activity.
Achievement of the Objectives
The Bill creates a civil regime which allows the Supreme Court, upon
application by the Police Commissioner, to make orders aimed at
disrupting and restricting the activities of criminal organisations and
preventing the expansion of such organisations.
The Bill allows for organisations to be declared `criminal organisations' by
the Supreme Court. The declaration will provide the basis for control
orders.
Members and associates of declared criminal organisations will, on
application of the Commissioner, be liable to have control orders imposed
on them. The purpose of a control order is to reduce the capacity of
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members of criminal organisations and their associates to carry out
activities that may facilitate serious criminal behaviour. Activities that may
be controlled by an order include: associating with other persons;
possessing stated weapons and other things; carrying or applying to carry
on certain prescribed activities, e.g. in the gaming, liquor or security
industry; entering or being in certain places; and recruiting new members
into a criminal organisation.
The Bill allows for the issuing of public safety orders. A public safety order
can prohibit an individual or group from entering a premises, specified area
or attending an event. The Supreme Court may make a public safety order
for any period it considers necessary but no longer than six months.
Applications for public safety orders are made on notice to the respondent
but the Bill provides that in urgent circumstances an application may be
heard ex parte unless the court directs otherwise. The purpose of a public
safety order is to reduce the risk posed by criminal gangs to the public
through their attendance at events or venues.
A fortification removal order can require an individual or organisation to
modify or remove fortifications from particular premises. The purpose of a
fortification removal order is to ensure police are not impeded from
investigating serious criminal activity by fortifications around clubhouses
or other premises used or occupied by criminal organisations and the
members and associates of criminal organisations.
In all civil applications under this Bill the Commissioner may apply to have
certain evidence declared to be `criminal intelligence'. Once the Supreme
Court has declared the evidence to be `criminal intelligence' it can not be
disclosed to any person including the respondent to an application or their
legal representatives. In order for the evidence to be declared criminal
intelligence the Police Commissioner must satisfy the Supreme Court that
the evidence would prejudice criminal investigations, identify a
confidential source of information or endanger the safety of another
person. This allows the court to hear certain evidence against individuals,
organisations and groups whilst maintaining the physical safety of
informants and covert operatives and minimising the threat of prejudicing a
criminal investigation.
The Bill provides that a contravention of a control order and public safety
order is a criminal offence. It is also an offence to hinder the enforcement
of a fortification removal order.
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Estimated Cost for Government Implementation
Costs arising from the Bill will be absorbed within existing funding. The
Government will continue to monitor potential financial implications to
maximise the operational impact of the Bill.
Consistency with Fundamental Legislative Principles
The use of secret `criminal intelligence' evidence
The Bill provides for the use of `criminal intelligence' in civil proceedings
which involves withholding admitted evidence from another party to a
proceeding and hence raises substantial issues about the principles of
natural justice.
The use of criminal intelligence is necessary on the basis that the disclosure
of such information could reasonably be expected to: prejudice a criminal
investigation; lead to the identity of confidential informants or covert
police officers; or endanger a person's life or physical safety.
Significant safeguards are included in the Bill to address the necessary
abrogation of natural justice being: the Supreme Court determines whether
certain information should be treated as `criminal intelligence' and is
afforded full discretion in making such a determination; in the event the
court declares information to be `criminal intelligence' and the evidence is
admitted, it is a matter for the court as to the weight placed upon such
evidence; the Criminal Organisation Public Interest Monitor (COPIM) will
be present at all hearings under the Bill and has access to all the
information before the court (except to the extent that the material discloses
an informant's name, current location, where the informant resides or
position held within an organisation). The COPIM's role is in the nature of
amicus curiae and will assist the court in making a decision as an
independent and impartial tribunal.
Informants will not be called to give evidence at a proceeding
The respondent to an application will be denied access to criminal
intelligence information. Also, the court and COPIM can not call an
informant or operative for the purpose of testing the veracity of the
informant's evidence.
Such an approach is necessary to protect the identity of the
informant/operative and the viability of the informant as a continuing
source of criminal intelligence information.
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However, where the Commissioner seeks to rely on information provided
by an informant or operative as part of the criminal intelligence, an
affidavit from the police officer that handles the informant/operative must
be filed with the court. That affidavit must contain the following
information regarding the informant/operative:
· details of the full criminal history (including any charges
pending) of the informant/operative;
· details of any allegations of professional misconduct made
against the informant/operative;
· details of any inducement or reward that has been offered or
provided to the informant/operative in return for their assistance;
and
· the grounds for the police officer's honest and reasonable belief
that the information provided by the informant/operative is
reliable.
The police officer who swears the affidavit must be available for
examination or cross examination.
Further, when seeking to rely on criminal intelligence, including informant
information, the Police Commissioner must provide the court with
information outlining the Queensland Police Service (QPS) internal
classification process for intelligence and the classification that was
assigned to the intelligence in issue with respect to the intelligence's
reliability and credibility.
Further, the court retains full discretion to determine what weight to give
any evidence before it, including informant evidence.
Criminal organisation declaration
The central mechanism in the Bill is that the Supreme Court, on a civil
application, can declare an organisation to be a criminal organisation. The
declaration has no immediate criminal effect upon the organisation but
provides the footing for an application for a control order.
The declaration is made by an independent and impartial tribunal, the
Supreme Court, exercising its full discretion. The court may only make a
criminal organisation declaration if satisfied the members of the
organisation associate for the purpose of engaging in or conspiring to
engage in, serious criminal activity and that the organisation is an
unacceptable risk to the safety, welfare or order of the community. The
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court is assisted in its determination by the COPIM. The declaration can be
appealed to the Court of Appeal.
Control Orders
The Supreme Court, on a civil application, can impose a control order
against a person, restricting activities of the controlled person. The effect of
such orders is to significantly curtail the rights and liberties of the
controlled person.
Balancing against the infringement of rights and liberties is the fact that the
control order is made by an independent and impartial tribunal, the
Supreme Court, exercising its full discretion. This affords the highest level
of supervision of the power. Before making a control order the court must
be satisfied that the respondent is or has been a member of the criminal
organisation, engages in or has engaged in serious criminal activity and is
associating with another person for the purpose of engaging in or
conspiring to engage in serious criminal activity. The order may also be
imposed on any person who has engaged or is engaging in serious criminal
activity and who associates with any member of a criminal organisation for
the criminal purpose as stated. Further, the court is assisted by the COPIM
acting in a role akin to an amicus curiae. Orders can be appealed to the
Court of Appeal.
A control order remains in effect until revoked. Whilst this would appear to
afford an indefinite term to such orders it must be noted that a control order
may only be made in reliance on the person's membership of a declared
criminal organisation or the person's association with a member of a
declared criminal organisation. The Bill provides that control orders will
end when the relevant declaration expires or is revoked. A controlled
person may seek to have the control order revoked if at least two years have
passed after the order was made.
Public Safety Orders
The Supreme Court may make a public safety order prohibiting an
individual or group from entering specified premises, areas or events. Such
an order impacts on rights and liberties.
An order may only be made where the presence of the respondent at the
particular place poses a serious risk to public safety or security and making
the order is appropriate in the circumstances. The Supreme Court
supervises the use of such a power. The COPIM is present for the hearing
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of such applications (apart from urgent phone applications). Such orders
can be appealed to the Court of Appeal.
Fortification removal orders
The Bill provides for the removal of excessive fortifications at premises
used in connection with serious criminal activity or premises owned or
habitually occupied or used by a criminal organisation or a member or
associate of a criminal organisation. Such fortifications pose a significant
obstacle in the execution of search warrants. Where a fortification removal
order is not complied with, an authorised police officer may cause the
fortification to be removed or modified to the extent required under the
order. The Commissioner may forfeit to the State any fortification
removed. Any `innocent' owner is compensated but a `responsible person'
is not. `Responsible person' is defined to mean the respondent to the
application and any other person who participated in causing the
fortification to be made and was the occupier of the fortified premises
when the order was made.
The Supreme Court has a discretion to impose a fortification removal order
if satisfied the premises has a fortification and the extent or nature of the
fortification is excessive for any lawful use of that type of premises.
Importantly, the Supreme Court can not impose such an order unless
satisfied the premises are linked to serious criminal activity or occupied or
used by a criminal organisation or one of its members or associates. The
court retains a full discretion as to whether to make such an order and in the
event an order is made, must fix the time or the period within which the
fortification must be removed or modified. The compulsory acquisition of
the fortifications without compensation is enlivened in the event the
respondent does not comply with the Supreme Court order.
Penalties
The Bill creates a new offence of contravention of control order or
registered corresponding control order the offence carries a maximum
penalty of three years imprisonment for a first offence and five years for
each later offence.
The equivalent Northern Territory offences in the Serious Crime Control
Bill 2009 (NT) carries a maximum penalty of five years imprisonment as
does the offence provided in the Serious and Organised Crime (Control)
Act 2008 (SA).
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The offence requires proof to an objective standard that the controlled
person knowingly contravened the order. The maximum penalties must be
sufficient to deter contravention of the order. The maximum penalty
provided is consistent with the other jurisdictions and is justified given the
criteria the court must be satisfied of before imposing a control order.
The Bill creates a new offence of contravention of public safety order
the offence carries a maximum penalty of one year imprisonment.
The equivalent Northern Territory and South Australian offences carry five
years imprisonment.
Before imposing a public safety order the court must be satisfied that the
presence of the respondent at the area or premises poses a serious risk to
public safety or security. In order to protect the public the maximum
penalty must be sufficient to deter contravention of the order.
The Bill creates a new offence of hindering removal or modification of a
fortification - the offence carries a maximum penalty of five years
imprisonment.
The equivalent Northern Territory offence carries three years
imprisonment. The Western Australian offence contained in the Corruption
and Crime Commission Act 2003 carries a maximum penalty of five years
imprisonment.
A fortification removal order may only be imposed if the court is satisfied
the premises is connected to serious criminal activity or is owned or used
by a criminal organisation or a member of associate of such an
organisation. The court must be satisfied the fortification is excessive for
any lawful use of that type of premises. Fortifications can impede the
execution of search warrants. Where the respondent fails to comply with
such an order, it is important that police can cause the fortification to be
removed or modified in accordance with the court order without the fear or
concern they will be prevented or obstructed from doing so. The maximum
penalty is consistent with the penalties in the other jurisdictions and will
act as a deterrent.
The Bill creates a new offence of unlawful disclosure of criminal
intelligence or information in informant affidavit the offence carries a
maximum penalty of one year's imprisonment.
The offence applies where criminal intelligence information (including
information that is or has been the subject of a criminal intelligence
application) or information in an informant's affidavit is disclosed without
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lawful authority or unless a person is required to disclose under the Bill or
where disclosure is necessary to perform the person's functions under the
Bill. The Bill provides for a number of defences to the offence. Given that
disclosure of such information may endanger a person's life or physical
safety it is vital that unauthorised disclosure is appropriately sanctioned.
The Bill creates a new offence of obtaining of or disclosure of secret
information about the identity of informant two new offences are
inserted into the Criminal Code, both offences carry a maximum penalty of
10 years imprisonment.
The first offence applies to a person who, without lawful justification or
excuse, obtains or attempts to obtain secret information (as defined) in the
possession of a law enforcement agency or officer about the identity of a
criminal organisation informant (as defined). The second offence is a
mirror provision directed at persons who publish or communicate such
secret information.
The disclosure of the identity of such an informant risks endangering his or
her life or physical safety. This justifies the creation of the offence and the
maximum penalty.
The Bill inserts new circumstances of aggravation into a number of
offences in the Criminal Code the amendments are necessary to deter
tactics of intimidation and violence towards potential witnesses and law
enforcement investigators.
Powers of entry and seizure
A power of entry is provided to a police officer to enter premises occupied
by the person named in a control order and search for and seize items
prohibited by the control order, without warrant. This power is similar to
that found in section 610 `Police actions after domestic violence order is
made' of the Police Powers and Responsibilities Act 2000.
The Supreme Court controls the use of this power and it can only be used
once in relation to a premises occupied by the controlled person. The
control order is made against a person who has been determined to be
involved in serious criminal activity. In this light, the person cannot be
relied upon to surrender the prohibited items.
Personal information gathering provisions
The legislation authorises police to require personal details of persons in
particular circumstances.
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The police officer may only require such personal details if the officer finds
the person committing an offence against this Bill or reasonably suspect the
person has just committed an offence against this Bill. The power also
applies where the officer is exercising powers under the Bill in relation to
the person. Such a power is necessary to ensure the effective operation of
the Bill.
Immunity
The Bill provides immunity from civil liability for officials (defined in the
Bill) acting honestly and without negligence. This is necessary to ensure
the effective operation of the Bill. Civil liability attaches instead to the
State.
Displacement of presumption to bail
The Bill amends the Bail Act 1980 to displace the presumption in favour of
bail for offences of contravention of a control order or a public safety order
and for an offence against the Criminal Code, section 359 with a
circumstance of aggravation. The displacement of the presumption is
justified on the following grounds:
· In order to impose a control order upon an individual, the
Supreme Court must be satisfied that the individual is or has
engaged in serious criminal activity and is associating with
certain persons for the purpose of engaging in or conspiring to
engage in serious criminal activity. The purpose of a control
order is to reduce the capacity of members of criminal
organisations and their associates to carry out activities that may
facilitate serious criminal behaviour. A breach of a control order
is a serious matter which warrants requiring the individual to
show cause why bail is justified;
· In order to impose a public safety order upon a respondent, the
Supreme Court must be satisfied that the respondent poses a
serious risk to public safety or security. In circumstances where it
is alleged that the respondent has defied the order and attended or
attempted to attend the particular place in question, it is
appropriate that the respondent is required to show cause why
bail is justified;
· With respect to an accused charged with the aggravated form of
`Threats' under section 359 of the Criminal Code, the allegation
will be that the person has threatened a law enforcement officer
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or a person helping a law enforcement officer, when or because
the officer is investigating the activities of a criminal
organisation. In order to ensure the protection of the officer or
person subject to the threat it is appropriate that the accused is
required to show cause why bail is justified.
Consultation
Consultation has occurred with the President of the Court of Appeal, Chief
Justice of the Supreme Court, Chief Judge of the District Court, Chief
Magistrate, Bar Association of Queensland, Queensland Law Society,
Director of Public Prosecutions, Legal Aid Queensland, Queensland
Council for Civil Liberties, Crime and Misconduct Commission and the
Public Interest Monitor.
Notes on Provisions
PART 1 Preliminary
Clause 1 establishes the short title to the Act as the Criminal Organisation
Act 2009
Clause 2 provides that the Act will commence on day to be fixed by
proclamation.
Clause 3 sets out the objectives.
Clause 4 notes that relevant definitions are contained in schedule 2.
Clause 5 establishes that the Act binds all persons including the State.
Clause 6 defines the term serious criminal activity to mean a serious
criminal offence (as defined in section 7) and any act or omission made
outside Queensland if that act or omission would constitute a serious
criminal offence in Queensland.
Clause 7 defines the term serious criminal offence.
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The definition encompasses indictable offences punishable by at least
seven years imprisonment, including offences that have been repealed.
The definition also includes any offence against the Act itself or any
offences that are listed in schedule 1 to the Act.
Subsection (2) is inserted to make it clear that the definition of serious
criminal offence does not include repealed sections 208 or 209 of the
Criminal Code unless the act or omission would be an offence against
sections 208 or 209 as it currently exists (the offence currently exists in
section 208 which includes attempts). Therefore, the definition of serious
criminal offence will not apply to acts of sodomy between consenting
adults over the age of 18 years.
Subsection (3) notes that references to offences in schedule 1 includes a
reference to any offence against the section of that number as the section
existed at any time since the original enactment.
Subsection (4) provides that subsection (1)(c) does not limit subsection
(1)(a).
PART 2 Criminal Organisations
Clause 8 allows the Commissioner to apply to the Supreme Court for a
declaration that an organisation is a criminal organisation.
Subsection (2) sets out the information that must be included in the
Commissioner's application. Subsection (4) of the section clarifies what is
meant by `sufficiently identifying the organisation' to make it clear that an
organisation only needs to be identified by a commonly known name or
other particulars.
Subsection (3) states that the Commissioner's application must be
accompanied by any affidavit material that the Commissioner might seek to
rely on at a hearing of the application.
Subsection (5) states that the application must be filed with the Supreme
Court registry and given a return date within 35 days of the filing date. The
Commissioner must then serve the respondent by personal service within
seven business days unless personal service is not practicable or if the
respondent is an unincorporated association. When personal service does
not apply, service is by public notice within 10 days after filing. The
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general provisions as to the requirements of personal service and service by
public notice are contained in part 9.
Subsection (6) provides that the Commissioner must give copies of the
application and any supporting material to the Criminal Organisation
Public Interest Monitor (COPIM). Section 88(2) provides that the COPIM
will not have access to information which discloses an informant's name,
current location, where the informant resides or the position held in an
organisation.
Clause 9 gives the respondent the right to file a response to the application
at least five business days before the return date. If the respondent chooses
to file a response, the response must state the facts that the respondent will
rely on and further state the nature of the respondent's response in relation
to each order being sought by the applicant. If the respondent intends to
rely on an affidavit at the hearing of the application, that affidavit must be
filed at the same time as the respondent's response.
Clause 10 allows the court to make a declaration that the respondent is a
criminal organisation and sets out the criteria that the court must be
satisfied of before it makes such an order. A number of terms in subsection
(1) are defined in schedule 2.
Subsection (2) sets out the information that the court must have regard to
when considering whether or not to make a declaration.
Subsection (3) clarifies that the respondent does not need to make
submissions at the application or be present during the hearing or making
of the decision for the court's declaration to be valid.
Subsection (4) allows the court to be satisfied that members of an
organisation associate for the purpose of engaging in, or conspiring to
engage in, serious criminal activity:-
(a) whether all members associate for that purpose or only
some of the members; and
(b) whether members associate for that purpose for the same
serious criminal activities or different ones; and
(c) whether or not the members also associate for other
purposes.
Subsection (5) clarifies, subsection (4)(a) in so far as if the court makes its
finding on the basis that only some of the members associate for the
purpose, those members must form a significant group either in terms of
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their numbers within a criminal organisation or in terms of their capacity to
influence the organisation or its members.
Clause 11 mandates that the Commissioner must publish notice of the
declaration in the gazette and at least one state circulated newspaper as
soon as reasonably practicable after the declaration is made. Subsection
(2) confirms that the declaration will have no effect until it is published.
Clause 12 provides that declarations remain in force for five years unless
the declaration is revoked or renewed. Subsection (2) provides that a
change of name or membership of a criminal organisation does not affect
the declaration. Subsection (3) states that a criminal organisation will
include any organisation into which members of that criminal organisation
substantially reform themselves regardless of whether the organisation
named in the declaration is dissolved.
Clause 13 allows the court to revoke a declaration about a criminal
organisation on the application of the Commissioner or the criminal
organisation or a member of the criminal organisation.
Subsection (3) sets out the information that must be included in an
application for revocation. Subsection (4) states that any affidavit that the
applicant intends to rely on at the hearing must be filed with the
application.
Subsection (5) makes it clear that the Commissioner must always be a party
to any proceedings involving an application for revocation by the criminal
organisation or member of that organisation.
Subsection (6) establishes that the applicant must serve copies of the
application with any accompanying affidavits on the other parties to the
application as soon as reasonably practicable after the application is filed.
Subsection (7) states that if the Commissioner is the applicant to the
proceedings, then the application must be personally served unless it is not
practicable do so. If it is not practicable to personally serve the application
or if the respondent is an unincorporated association, then the application
must be served by public notice. The provisions as to the requirements of
personal service and service by public notice are contained in part 9.
Subsection (8) requires the Commissioner to provide copies of the
application and supporting material to the COPIM (subsection to section
88).
Subsection (9) allows the court to revoke the declaration only if the court is
satisfied that there has been a substantial change in the nature or
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Criminal Organisation Bill 2009
membership of the criminal organisation to the extent specified in
subsections (9) (a) and (b).
Clause 14 requires the Commissioner to publish notice of the revocation or
expiration of a declaration in the gazette and at least one state circulated
newspaper as soon as reasonably practicable after the revocation is made or
the declaration has expired.
Clause 15 subsection (1) prohibits a criminal organisation or a member of a
criminal organisation from applying for a revocation under section 13 until
at least three years after the declaration has been made. Subsection (2)
prohibits the criminal organisation or a member of a criminal organisation
from making more than two applications for revocation in the first five
years after the declaration is made.
PART 3 Control Orders
Division 1 Making, variation and revocation
Clause 16 allows the Commissioner to apply to the Supreme Court for a
control order for a person.
Subsection (2) sets out the information that must be contained in an
application for a control order.
Subsection (3) requires that the application must be accompanied by any
affidavit which the Commissioner intends to rely on at the hearing and a
draft of the order that the Commissioner is seeking from the court.
Subsection (4) states that the application must be filed with the Supreme
Court registry and the registry must provide a return date within 35 days of
the filing date. Once the application has been filed, the Commissioner
must serve the respondent by personal service within seven business days
unless it is impracticable to do so. If personal service is not practicable, the
Commissioner must serve by public notice within 10 days after filing. The
provisions as to the requirements of personal service and service by public
notice are contained in part 9.
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Criminal Organisation Bill 2009
Subsection (5) requires that the Commissioner to give copies of the
application and any supporting material to the COPIM (subject to section
88).
Clause 17 allows the respondent to file a response to the Commissioner's
application. The response must be filed at least five days before the
application's return date. If the respondent chooses to file a response, the
response must state the facts that the respondent will rely on and further
state the nature of the respondent's response in relation to each order being
sought by the applicant. The respondent must file with their response any
affidavit that the respondent intends to rely on at the hearing of the
application.
Clause 18 allows the court to make a control order and sets out the criteria
the court must be satisfied of before making such an order.
Subsection (3) sets out information that the court must have regard to when
making the decision about whether to make a control order against a
person.
Subsection (4) clarifies that the respondent does not need to make
submissions at the application or be present during the hearing or present at
the making of the decision to grant a control order for the court's control
order to be valid.
Subsection (5) defines member with respect to this section.
Clause 19 subsection (1) gives the court the power to attach any conditions
to a control order that the court considers appropriate.
Subsection (2) sets out a number of specific conditions that the court may
consider imposing.
Subsection (3) provides that a condition imposed on a control order under
subsection (2) (a) applies in relation to an association with any person who
is a member of a criminal organisation. The section provides that whether
the person is a member of the criminal organisation at the date the control
order is made or becomes a member at a later date does not affect the
application of such a condition. Further, the section provides that whether
the criminal organisation was declared to be a criminal organisation at the
date the control order is made or whether the organisation is declared at a
later date does not affect the application of such a condition.
Subsection (4) provides that a condition imposed on a control order under
subsection (2) (b) applies in relation to any association with a person who
is a controlled person at the time of the association. The section provides
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Criminal Organisation Bill 2009
that the condition applies whether or not the person was a controlled person
at the date the control order is made or whether the person becomes a
controlled person at a later date.
Subsection (5) provides that if the respondent is a member of a criminal
organisation then the court must impose the conditions listed in subsection
(2)(a), (b), (c)(i), (d) and (e). However, the section also provides that where
conditions (2)(a) and (b) would affect a personal relationship the court is
provided with a discretion to not impose such a condition and before the
court can exercise that discretion it must have regard to the matters set out
in subsection (7). Personal relationship is defined in schedule 2.
Subsection (6) provides that the court must order a respondent to deliver
anything that the respondent will be prohibited from possessing under the
control order to the Commissioner's custody within 24 hours of the order
being made. Pursuant to section 24, particularly subsection (7), retention of
a prohibited thing beyond the 24 hour period may constitute a
contravention of a control order.
Subsection (7) requires the court to consider the effect of placing a
non-contact condition on a control order on a personal relationship. The
court must consider the effect that such a condition would have on the
relationship and whether the non-contact condition should relate only to a
particular class of activity or relate to activities generally. The definition of
non-contact condition is contained in schedule 2.
Subsection (8) allows the court to impose conditions on a police officer's
power to search and seize particular things as set out in section 25.
Clause 20 subsection (1) establishes that the control order takes effect from
the date that the order is made if the respondent or the respondent's legal
representatives or any other type of representative of the respondent is
present at the hearing of the application. If none of the persons listed in
subsection (1) (a) are present then subsection (1) (b) provides that the
control order can only take effect once it is served on the respondent.
Subsection (2) provides that if subsection (1) (b) applies then service of the
control order must be by way of personal service if it is practicable to
personally serve. If personal service is not practicable, the control order
must be served by way of public notice. The requirements of personal
service and service by public notice are contained in part 9.
Subsection (3) provides that control orders will remain in force until the
control order is revoked.
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Subsection (4) provides that if control orders or interim control orders are
made on the basis of a person's membership or association with a particular
criminal organisation, the control order will cease to have effect when the
declaration pertaining to that particular criminal organisation expires or is
revoked (refer section 18 (1) and (2)).
Clause 21 allows for the making of interim control orders if the application
for a control order has been served on the respondent. The interim order
may be made on or after the return date for the control order application.
Subsection (3) allows a court to make the interim control order if the court
is satisfied that there are reasonable grounds for believing there is sufficient
basis to make the final control order.
Subsection (4) clarifies that the respondent does not need to make
submissions at the application or be present during the hearing or present at
making of the decision to grant an interim control order for the court's
interim control order to be valid.
Subsection (5) sets out the conditions that must be contained in an interim
control order.
Subsection (6) provides that the interim control order must contain a
condition that requires the respondent to deliver any item that the
respondent is not allowed to possess under the terms of their interim
control order into the custody of the Commissioner within 24 hours.
Pursuant to section 24, particularly subsection (7), retention of a prohibited
thing beyond the 24 hour period may constitute a contravention of a control
order.
Subsection (7) provides that the interim control order takes effect from the
date that the order is made if the respondent or the respondent's legal
representatives or any other type of representative of the respondent is
present at the hearing of the application. Otherwise, the interim control
order takes effect once it is served on the respondent.
Subsection (8) provides that if subsection (7) (b) applies then service of the
control order must be by way of personal service if it is practicable to
personally serve. If personal service is not practicable, the control order
must be served by way of public notice. The requirements of personal
service and service by public notice under this act are contained in part 9.
Clause 22 subsection (1) allows the court to vary a control order other than
a condition mentioned in section 19 (5).
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Subsection (2) allows an application for variation to be made by:
· the commissioner at any time; or
· the controlled person if at least 12 months have passed since the date
of making the order or if 12 months have passed since the controlled
person's last application for variation for their control order.
Subsection (3) sets out the information that the application for a variation
of a control order must include.
Subsection (4) requires that an application must be accompanied by any
affidavit that the applicant intends to rely on at the hearing of the
application and a draft of the order that the applicant is seeking from the
court.
Subsection (5) provides that the Commissioner will always be a party to
any application for a variation of a control order made by a controlled
person.
Subsection (6) provides that the applicant must serve their application with
any accompanying affidavit and draft order on the other party to the
proceeding as soon as reasonably practicable after the application is filed.
Subsection (7) requires the Commissioner (when the Commissioner is the
applicant) to serve the other party by personal service if it is practicable to
do so. If it is not practicable, the Commissioner must serve the other party
by way of public notice. The requirements for personal service and service
by way of public notice are contained in part 9.
Subsection (8) requires the Commissioner to provide the COPIM with
copies of the application, the accompanying affidavit and draft order
regardless of whether the Commissioner is the applicant or not (subject to
section 88).
Subsection (9) sets out what the court must be satisfied of before making a
variation to a control order upon an application by a controlled person.
Subsection (10) requires the Commissioner (if the applicant) to serve a
copy of the varied control order upon the controlled person as soon as is
reasonably practicable after the order is made. Service is by personal
service or if personal service is not practicable then by public notice. The
requirements for personal service and service by way of public notice are
contained in part 9.
Subsection (12) provides that if the Commissioner is the applicant, a
variation of a control order takes effect from when the Commissioner
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Criminal Organisation Bill 2009
serves the controlled person but if the controlled person is the applicant, the
variation of the control order takes effect from when the order is made.
Clause 23 allows the court to revoke a control order on application of the
Commissioner at any time or on the application of a controlled person if at
least two years have passed since the control was made.
Subsection (3) sets out what information the application must contain.
Subsection (4) requires the application to be accompanied by any affidavit
that the applicant intends to rely on at the hearing of an application.
Subsection (5) provides that the Commissioner will always be a party to
any proceedings for an application for revocation made by a controlled
person.
Subsection (6) provides that the applicant must serve a copy of the
application along with any accompanying affidavit on the other party to the
proceedings as soon as is reasonably practicable after the application has
been filed with the Supreme Court registry.
Subsection (7) requires the Commissioner (if the applicant) to serve the
other party by personal service and if personal service is not practicable, by
public notice. The requirements for personal service and service by public
notice are contained in part 9.
Subsection (8) requires the Commissioner to provide copies of the
application and supporting material to the COPIM whether the
Commissioner is the applicant or not (subject to section 88).
Subsection (9) sets out what the court must be satisfied of in order to make
an order revoking a control order.
Subsection (10) clarifies subsection (9)(b) and (c), that in calculating a
period of two years, the court can not take into account any period where
the controlled person was imprisoned or detained.
Subsection (11) requires the Commissioner (if the applicant) to serve a
copy of the revocation order on the controlled person as soon as is
reasonably practicable after the order is made. Service is by personal
service and if personal service is not practicable, by public notice. The
requirements for personal service and service by way of public notice are
contained in part 9.
Subsection (13) provides that a revocation order takes effect when the order
is made.
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Criminal Organisation Bill 2009
Division 2 Enforcement
Clause 24 subsection (1) creates an offence of knowingly contravening a
control order or a registered corresponding control order. The penalty
provided for the offence is a maximum of three years imprisonment for a
first offence and a maximum of five years imprisonment for each later
offence.
Subsection (2) provides that a first offence will be a misdemeanour and any
later offence will be a crime.
Subsection (3) clarifies that an offence will be taken to be a later offence
only if committed once a person is found guilty of an earlier offence.
Subsection (4) provides that `knowingly' as it is used in subsection (1)
includes where the person "ought reasonably to know". Therefore, an
objective standard of knowledge applies.
Subsection (5) clarifies that that a breach of a non-contact condition is not
dependant on proof of any particular purpose for the association.
Subsection (6) provides that the defendant in proceedings for an offence
under this section involving a breach of a non-contact condition that has an
exception about association with a person with whom the defendant has a
person relationship, will bear the onus of proving on the balance of
probabilities that the association which is the subject of the proceedings
involved a person with whom the defendant had a personal relationship.
The definitions of non-contact condition and personal relationship are in
schedule 2.
Subsection (7) provides that a person will not contravene their control
order if they are found in possession of a prohibited article in the first 24
hours after the making of the control order. This provides a controlled
person with an opportunity to divest themselves of any prohibited items in
the first 24 hours after a control order is made and is consistent with the
provision in section 21, subsection (6).
Clause 25 provides a police officer with certain search and seizure powers
which can be exercised in the first seven days after a control order or
registered corresponding control order is served on a person and can only
be exercised once in relation to each premises occupied by the controlled
person.
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Criminal Organisation Bill 2009
Subsection (3) sets out the steps that a police officer must take or make a
reasonable attempt to take before entering the premises occupied by the
controlled person.
Subsection (4) clarifies that the word `enter' as it is used in this section
should be read to include the right of re-entry on the single occasion that
the police officer may use their powers in relation to a particular premises.
Clause 26 provides a police officer with the power to seize a prohibited
thing even if that seizure occurs within the first 24 hours after a control
order has been made. However, subsection (3) provides for the things that
are seized pursuant to this section to be kept in the Commissioner's custody
while the order is in effect. The seized things must be returned to the
controlled person when the control order is no longer in effect with the
proviso that the controlled person is lawfully able to take possession of the
seized thing at that time.
PART 4 Public Safety Orders
Clause 27 defines the meaning of prescribed conditions and prescribed
grounds for the purposes of part 4.
Clause 28 subsection (1) sets out what the court must be satisfied of before
making a public safety order.Subsection (2) sets out what the court must
have regard to when deciding whether to make a public safety order or not.
Subsection (3) provides that when the respondent is a group of persons the
court must consider the extent to which members of the group as opposed
to every individual member of the group, satisfy a matter under subsection
(1) and (2).
Clause 29 Subsection (1) allows a court to impose any necessary
conditions on persons or groups who are subject to a public safety order.
Subsection (2) does not limit subsection (1) but sets out conditions that the
court can impose if they believe it is necessary to do so to give effect to the
public safety order.
Subsection (3) requires that all public safety orders must contain a
direction that a respondent to the order must comply with every reasonable
direction given by a police officer for the purpose of complying with the
order.
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Criminal Organisation Bill 2009
Subsection (4) requires that the requirement in subsection (3) be explicitly
stated in the order.
Subsection (5) allows the court to impose conditions relating to police
powers under section 37.
Subsection (6) clarifies that a public safety order can not stop a respondent
from entering the respondent's own principal place of residence.
Subsection (7) defines respondent.
Clause 30 provides that part 4 does not affect the Peaceful Assembly Act
1992.
Division 2 Making, variation and revocation
Clause 31 subsection (1) allows the Commissioner to apply to the Supreme
Court for a public safety order.
Subsection (2) provides that where the respondent is a group of persons the
term `respondent' is a reference to the members generally of the group.
Subsection (3) sets out the information that must contained in the
application.
Subsection (4) requires that the application must be accompanied by any
affidavit that the Commissioner will rely on at the hearing of the
application.
Subsection (5) requires that the application as detailed in subsection (3)
and the affidavit as detailed in subsection (4) must be filed with the
Supreme Court registry. Subsection (5) (b) requires the registry to provide
a return date within 35 days after the filing date. Subsection (5) (c) (i)
requires that the application and accompanying affidavits be personally
served. Subsection (5) (c) (ii) states that if personal service is not
practicable or if the respondent is a group of persons then service is by way
of public notice. The requirements as to personal service and service by
way of public notice are contained in part 9.
Subsection (6) requires the Commissioner to give copies of the application
and any supporting material to the COPIM under arrangements decided by
the COPIM (subject to section 88).
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Criminal Organisation Bill 2009
Clause 32 allows the respondent to file a response to the Commissioner's
application. The response must be filed at least five days before the
application's return date. If the respondent chooses to file a response, the
response must state the facts that the respondent will rely on and further
state the nature of the respondent's response in relation to each order being
sought by the applicant. The respondent must file with their response any
affidavit that the respondent intends to rely on at the hearing of the
application. Subsection (5) requires that if the respondent is a group of
persons, the response must be filed by one nominee of that group as
mentioned in section 108.
Clause 33 subsection (1) allows the court to make a public safety order if
satisfied that prescribed grounds exist to make the order.
Subsection (2) provides that the order will be effective regardless of
whether the respondent was present at the hearing of the application or
made any submission at the hearing of the application.
Clause 34 subsection (1) provides that a public safety order will take effect
from either:
a) the date the order is made if the respondent, a representative of
the respondent or a legal representative is present as the hearing
of the application; or
b) when the Commissioner serves the order on the respondent.
Subsection (2) requires the Commissioner to serve the public safety order
by personal service. If personal service is not practicable or if the
respondent is a group of persons then service is by public notice. The
requirements as to personal service and service by way of public notice are
contained in part 9.
Subsection (3) provides that a public safety order will remain in force for
the duration of the order or until revoked, whichever event happens first.
Subsection 3(b) also provides that a public safety order can not be longer
than six months in duration.
Clause 35 provides for ex parte urgent applications, however, the court
may, before finally deciding the application, direct the Commissioner to
give notice to the respondent. Urgent applications may be made by
telephone subject to any practice directions from the Chief Justice. An
order made ex parte will remain in force for a period of 24 hours unless the
court directs otherwise.
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Criminal Organisation Bill 2009
Pursuant to subsection (8), the court can not grant an extension of an ex
part order or grant another ex parte order for the same circumstances,
unless the application is made on notice. Subsection (9) anticipates the
occasion where the Commissioner makes an urgent application and relies
on information the Commissioner reasonably believes to be criminal
intelligence. The Commissioner may make a criminal intelligence
application but the court may adjourn that application and proceed with the
public safety order application.
Clause 36 subsection (1) allows the court to vary or revoke a public safety
order at any time but only on the application of the Commissioner.
Subsection (2) sets out the information that must be included in any
application for a variation or revocation of a public safety order.
Subsection (3) requires an application for variation or revocation of a
public safety order to be accompanied by any affidavit on which the
Commissioner intends to rely.
Subsection (4) requires the Commissioner to serve a copy of the
application and accompanying affidavit on the respondent.
Subsection (5) requires the Commissioner to serve a copy of the variation
or revocation order on the respondent as soon as is reasonably practicable
after it is made.
Subsection (6) requires personal service and if personal service is not
practicable or if the respondent is a group of persons then service is by
public notice. The requirements of personal service and service by way of
public notice are set out in part 9.
Subsection (7) requires the Commissioner to give copies of the application
and supporting material to the COPIM (subject to section 88).
Division 4 Enforcement
Clause 37 subsection (1) allows a police officer to enter a public safety
place (as defined in subsection (7)) without warrant to search for a person
against whom a public safety order has been made for the purpose of
serving copy of the order upon the person.
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Criminal Organisation Bill 2009
Subsection (2) allows a police officer to stop, detain and search a vehicle
approaching in or leaving a public safety place without a warrant in order
to:
a) search for a person for whom a public safety order has been made; or
b) to serve a copy of the public safety order on a person.
Subsection (3) allows a police officer to stop a person or persons entering
public safety places and allows a police officer to remove a person or
persons from such a place.
Subsection (4) requires a police officer who is exercising powers under
subsection (3) to give certain directions to persons whom the power is
exercised against if it is reasonably practicable to do so.
Subsection (5) allows a police officer to give any direction or use force to
exercise the power under this section.
Subsection (6) creates an offence for contravening a direction given by a
police officer under this section without reasonable excuse.
Subsection (7) defines the term public safety place.
Clause 38 creates an offence of knowingly contravening a public safety
order and provides a maximum penalty of one year's imprisonment.
Knowingly is defined to include where the person ought reasonably to
know. Therefore, an objective standard of knowledge applies.
PART 5 Fortification removal orders
Division 1 Preliminary
Clause 39 defines key terms used within part 5.
Clause 40 establishes the relationship between part 5 and the Integrated
Planning Act 1997 and the Sustainable Planning Act 2009 and
development approvals provided under that legislation.
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Criminal Organisation Bill 2009
Division 2 Applying for and obtaining
fortification removal order
Clause 41 subsection (1) allows the Commissioner to apply to the Supreme
Court for a fortification removal order against a person or an organisation.
Subsection (2) requires that the respondent must be a person or
organisation who occupies the fortified premises.
Subsection (3) sets out the information that an application for a fortification
removal order must contain.
Subsection (4) requires the application to be accompanied by any affidavit
that the Commissioner intends to rely on.
Subsection (5) requires the application and accompanying affidavit to be
filed with the Supreme Court registry and given a return date within 35
days. This subsection also requires that the application and accompanying
affidavit be personally served on the respondent within seven business days
of filing. If it is not practicable to personally serve the respondent or if the
respondent is an unincorporated association then service is by public
notice. The requirements for personal service and service by way of public
notice are set out in part 9.
Subsection (6) requires the Commissioner to give copies of the application
and filed affidavits to the COPIM (subject to section 88).
Clause 42 allows the respondent to file a response to the Commissioner's
application. The response must be filed at least five days before the
application's return date. If the respondent chooses to file a response, the
response must state the facts that the respondent will rely on and further
state the nature of the respondent's response in relation to each order being
sought by the applicant. The respondent must file with their response any
affidavit that the respondent intends to rely on at the hearing of the
application.
Clause 43 allows the court to make a fortification removal order for the
respondent if the court is satisfied of certain matters set out in subsection
(1) of the section.
Subsection (2) provides that the fortification removal order can by made
whether or not the respondent is present during the hearing of the
application or makes any submissions at the hearing of the application.
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Criminal Organisation Bill 2009
Clause 44 subsection (1) requires the court to fix a period of inspection
when making a fortification removal order.
Subsection (2) allows the Commissioner or an authorised police officer to
use reasonably necessary force to enter and re-enter the fortified premises
from time to time during the period required to be fixed in subsection (1) to
confirm whether the fortification removal order has been complied with
and whether any other fortifications have been erected on the fortified
premises.
Subsection (3) provides that the procedures and requirement for entry as
provided in sections 51 and 52 apply to the exercise of powers provided
under subsection (2) of this section.
Clause 45 subsection (1) provides the court with a general power to make
any other type of order about the enforcement of the fortification removal
order that the court thinks is appropriate.
Subsection (2) provides the court with a list of issues that the court may
consider when determining whether to make an order under subsection (1).
Subsection (3) provides that when the court makes an order with regards to
the enforcement of a fortification removal order those orders may add to or
place limits on the enforcement powers provided in division 4 of part 5.
Clause 46 requires that a fortification removal order must contain certain
information which is set out in subsections (1) and (2) of the section.
Clause 47 subsection (1) provides that a fortification removal order will
become effective immediately upon the court making the order if the
respondent, a representative of the respondent or a legal representative of
the respondent is present at the hearing of the application.
Subsection (2) provides that if subsection (1) is not applicable the order
will take effect when the Commissioner serves the order on the respondent.
Subsection (3) requires that service of a fortification removal order upon
the respondent must be by way of personal service if it is practicable. If
personal service is not practicable or if the respondent is an unincorporated
association then service must be by way of public notice. The
requirements of personal service and service by way of public notice are set
out in part 9.
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Criminal Organisation Bill 2009
Division 3 Stays
Clause 48 provides that the filing of an appeal about a fortification removal
order will stay the operation of the order until the appeal is withdrawn or
dismissed.
Division 4 Enforcement
Subdivision 1 Preliminary
Clause 49 provides for the circumstances under which the enforcement
powers in division 4 can be used.
Subdivision 2 Enforcement of order
Clause 50 subsection (1) allows the Commissioner or an authorised police
officer (an enforcer) to cause the removal or modification of the
fortifications to the extent provided for in a fortification removal order.
Subsection (2) allows an enforcer to take certain action in the course of
causing a fortification to be modified or removed.
Subsection (3) allows an enforcer to use reasonably necessary force to
remove a person under subsection (2)(g).
Subsection (4) allows the enforcement powers to be exercised at any time
and as often as is required to achieve the removal or modification subject to
an enforcer's compliance with sections 51 and 52. However, the powers do
not limit or otherwise alter any other enforcement powers provided under a
fortification removal order.
Clause 51 requires an enforcer to do certain things or make reasonable
attempts to do certain things before entering a fortified premises for the
purposes of enforcing a fortification removal order where the respondent or
an occupier of the fortified premises is present at the premises. If the
fortification makes it impracticable to communicate with the occupier of
the fortified premises then the requirements do not apply.
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Criminal Organisation Bill 2009
Clause 52 subsection (1) provides that entry into a building on fortified
premises should only take place if an enforcer reasonably believes that the
entry is needed to take enforcement action.
Subsection (2) provides that entry into a residential part of a building on
fortified premises can only take place where an enforcer reasonably
believes that the fortification consists of or includes the residential part of
the building and entry into the residential part of the building is necessary
to take enforcement action.
Clause 53 subsection (1) provides that noise that is caused by taking
enforcement action does not constitute an offence against section 440Q of
the Environmental Protection Act 1994 i.e. an offence of contravening a
noise standard. However, pursuant to subsection (2) the exemption does not
apply if the enforcement action is taken at a time prohibited under the
fortification removal order.
Subdivision 3 Powers after taking enforcement
action
Clause 54 subsection (1) allows the Commissioner to forfeit to the State
any fortification removed under division 4, part 5.
Subsection (2) provides that a removed fortification becomes the property
of the State and may be dealt with by the Commissioner as the
Commissioner considers appropriate, subject to the provisions of the Police
Service Administration Act 1990 section 4.6.
Subsection (3) allows the Commissioner to destroy or dispose of a removed
fortification.
Subsections (4) to (7) provide for how forfeited fortifications must be sold
and the proceeds applied.
Clause 55 allows the State to recover from a responsible person (as defined
in section 39) as a debt, the reasonable costs incurred in taking enforcement
action. However, the net proceeds from the sale of the fortification must be
set off against the amount of the debt.
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Criminal Organisation Bill 2009
Division 5 Miscellaneous provisions
Clause 56 subsection (1) creates an offence where a person intentionally
hinders the removal or modification of a fortification or hinders the taking
of enforcement action. A maximum penalty of five years imprisonment is
provided for this offence.
Subsection (2) defines the terms `fortification removal order' and `hinder'.
Clause 57 subsection (1) sets out the circumstances which must be present
for a compensation claim to be made against the State relating to the taking
of enforcement.
Subsection (2) sets out the reasonable costs relating to the taking of
enforcement action that an owner other than a responsible person can claim
from the State.
Subsection (3) allows the compensation to be claimed and ordered against
the State in a court of competent jurisdiction.
Subsection (4) allows a court to make an order of compensation against the
State only if the court is satisfied that it is just to make the order in all the
circumstances of the particular case.
Subsection (5) allows for a future regulation to prescribe matters that may
or must be taken into account by the court when considering whether it is
`just' to make the order as specified in subsection (4) of the section.
Clause 58 applies when the State has made a payment under section 57 and
allows the State to recover an amount from any responsible person as a
debt.
PART 6 Criminal Intelligence
Division 1 Preliminary
Clause 59 defines the term `criminal intelligence'.
Clause 60 sets out the objects.
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Criminal Organisation Bill 2009
Clause 61 allows any affidavits relied on by the Commissioner in an
application under this part to contain hearsay evidence.
Clause 62 provides that part 6 must be read subject to part 7 which deals
with the creation and the role of the Criminal Organisation Public Interest
Monitor (`COPIM').
Division 2 Declaration of criminal intelligence
Clause 63 subsections (1) and (2) allow the Commissioner to apply to the
Supreme Court for a declaration that particular information is criminal
intelligence if the Commissioner reasonably believes that the information
is criminal intelligence.
Subsection (3) sets out the information that must be included in the
Commissioner's application.
Subsection (4) provides that any affidavit that the Commissioner wishes to
rely on at the hearing of the application must be filed with the application.
Subsection (5) requires the Commissioner to give copies of any application
to the COPIM (subject to section 88).
Clause 64 applies to information that was supplied by an informant and
forms part of the Commissioners application. The term informant is
defined in schedule 2.
Subsections (2) and (3) provide that an informant can not be called on to
give evidence but the Commissioner must file an affidavit by the police
officer who handles the informant who has supplied the information. It
follows that such an affidavit must be provided to the COPIM.
Subsection (4) sets out the information that must be contained in the
affidavit sworn by the police officer who handles the informant and filed by
the Commissioner.
Clause 65 subsection (1) requires the registrar to seal certain documents
immediately upon those documents being filed under part 6, division 2 and
store them in a secure place.
Subsection (2) provides that the Public Records Act 2002 does not apply to
documents filed under part 6, division 2.
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Criminal Organisation Bill 2009
Subsection (3) requires that unless the court orders otherwise, the
documents filed under part 6 division 2 are not to be made available to
anyone other than the registrar, the judge who is presiding over the specific
application and that judge's associate, the COPIM and the retired Supreme
Court judge who performs the required reviews.
Subsection (4) provides that a COPIM can not inspect any part of a
document filed under part 6, division 2 which includes an informant's
name, current location, where the informant resides or position held by the
informant in an organisation.
Subsection (5) limits the orders a court can `otherwise' make under
subsection (3). It sets out the only circumstances in which the court can
order that documents be made available to persons other than those
specified in subsection (3).
Subsection (6) allows the registrar to return hard copies of documents
specified in subsection (1) to the Commissioner on the application's end
day provided that the registrar has made electronic copies of the documents
on a storage device that is unconnected to any computer and stores the
storage device securely.
Subsection (7) provides that the section applies even if an application under
part 6, division 2 is withdrawn or dismissed.
Subsection (8) provides that if a criminal intelligence declaration is
revoked this section will cease to apply to that information.
Subsection (9) defines the terms end day and storage device.
Clause 66 provides that an application under part 6, division 2 can be heard
without notice of the application having been given to any person other
than the COPIM.
Clause 67 provides that if the Commissioner intends to rely on criminal
intelligence for a substantive application, the criminal intelligence
application must be heard first, regardless of when any application is filed.
However, there is an exception to this in relation to applications for public
safety orders made without notice.
Clause 68 requires that before a hearing begins in an application under part
6, division 2, the court must provide a warning to all persons present in the
court about the confidential nature of information that is about to be heard
and the unlawful disclosure offence that is set out at section 82.
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Criminal Organisation Bill 2009
Clause 69 provides that the warning has to be recorded in bold print at the
start of the transcript of the hearing and each page of the transcript must be
watermarked with a warning that directs the reader to the unlawful
disclosure offence.
Clause 70 subsection (1) provides that the hearing of an application under
part 6, division 2 is a special closed hearing. Whilst all applications under
the Bill are closed pursuant to section 108 (4) and (5), the effect of the
section is to create a special closed hearing for these ex parte applications.
Subsection (2) sets out a list of the only persons who can remain in the
court during a hearing of an application under part 6, division 2.
Clause 71 subsection (1) provides that with the court's leave any police
officer who is not an informant can be called to give evidence at a hearing
of an application under part 6, division 2 and may be cross examined by the
court or the COPIM.
Subsection (2) places a limitation on the examination and cross
examination provided in subsection (1) in so far as preventing the court or
the COPIM from asking a question that could lead to the disclosure of an
informant's name, current location, where the informant resides or a
position held by the informant in an organisation.
Clause 72 subsection (1) provides the court with discretion to make a
declaration that information is criminal intelligence if the court is satisfied
that the information is criminal intelligence.
Subsection (2) expressly provides that the court may, in exercising its
discretion as to whether to declare information to be criminal intelligence
consider whether unfairness to a respondent outweighs any of the matters
set out in section 60(a) (i) to (iii).
Subsection (3) requires that in circumstances where the court does not
make a declaration that information is criminal intelligence, the court must
give the Commissioner an opportunity to withdraw the application.
Subsection (4) defines respondent to include a respondent to any existing
or possible future application under this Act.
Clause 73 provides that a criminal intelligence declaration takes effect
from when it is made and remains in force until the declaration is revoked.
Clause 74 subsection (1) allows the court to revoke a criminal intelligence
declaration at any time but only on the application of the Commissioner.
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Criminal Organisation Bill 2009
Subsection (2) sets out the information that must be contained in an
application under this section.
Subsection (3) provides that an application under this section must be
accompanied by any affidavit that the commissioner intends to rely on at
the hearing of the application.
Subsection (4) requires the Commissioner to give copies of the application
and any supporting material to the COPIM (subject to section 88).
Subsection (5) requires the court to consider the application without notice
of the application been given to any person other than the COPIM.
Division 3 Protection of declared criminal
intelligence for substantive hearings
Clause 75 sets out the circumstances in which part 6, division 3 applies i.e.
when documents are filed in support of a substantive application and
contain declared criminal intelligence. The section provides that
protections for criminal intelligence provided for in part 6, division 3,
apply to all applications for an order made under this Bill regardless of
what part of the Bill the application relates to.
Clause 76 applies if information that is eligible for protection under part 6,
division 3, contains any information which was supplied to the
Commissioner by an informant and the Commissioner seeks to rely on that
information. The term informant is defined in schedule 2. This section
mirrors section 64.
Clause 77 subsection (1) requires the registrar to seal specified documents
and store those documents in a secure place immediately upon their filing.
Subsection (2) provides that the Public Records Act 2002 does not apply to
documents that are eligible for protection under part 6, division 3.
Subsection (3) requires that unless the court orders otherwise, the
documents filed under Part 6 division 2 are not to be made available to
anyone other than the registrar, the judge who is presiding over the specific
application and that judge's associate, the COPIM and the retired Supreme
Court judge who performs a required review.
Subsection (4) provides that a COPIM can not inspect any part of a
document filed under part 6, division 2 which includes an informant's
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name, current location, where the informant resides or the position held by
the informant in an organisation.
Subsection (5) limits the orders a court can `otherwise' make under
subsection (3). It sets out the only circumstances in which the court can
order that documents be made available to persons other than those
specified in subsection (3).
Subsection (6) allows the registrar to return hard copies of documents
specified in subsections (1)(a) and (b) to the Commissioner on the
application's end day provided that the registrar has made electronic copies
of the documents on a storage device that is unconnected to any computer
and stores the storage device securely.
Subsection (7) provides that the section applies even if the substantive
application is withdrawn or dismissed.
Subsection (8) provides that if a criminal intelligence declaration is
revoked then this section will cease to apply to that information.
Subsection (9) defines the terms end day and storage device.
Clause 78 subsection (1) provides that if during the hearing of an
application the court is to consider declared criminal intelligence, then that
evidence must be considered by the court during a special closed hearing.
Whilst it is the case that all hearings under the Bill are closed pursuant to
section 108 (4) and (5), the effect of this section is that the respondent and
the respondents legal representatives must be excluded from the court for
the consideration of criminal intelligence.
Subsection (3) provides that before a closed hearing under this section
begins, the court must give a warning to all persons present in the court
about the confidential nature of the information that will be before the court
and alert them to the unlawful disclosure offence which is provided for at
section 82.
Clause 79 requires the warning to be recorded in bold print at the start of
the transcript of any part of the hearing that is closed pursuant to this
section and that each page of the transcript must be watermarked with a
warning directing the reader to the unlawful disclosure offence.
Clause 80 subsection (1) provides that with the court's leave any police
officer who is not an informant can be called to give evidence at a hearing
of an application brought under this Bill in relation to information which is
eligible for protection under part 6, division 3. A police officer may be
examined and cross examined by the court or the COPIM.
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Subsection (2) places a limitation on the examination and
cross-examination provided in subsection (1) in so far as preventing the
court or the COPIM from asking a question that could lead to the
disclosure of an informant's named, current location, where an informant
resides or a position held by the informant in an organisation.
Clause 81 clarifies that if, apart from the declaration, criminal intelligence
would be admitted into evidence, the criminal intelligence must be
admitted despite the declaration.
Division 4 Protection from unlawful disclosure
Clause 82 creates an offence of unlawful disclosure of criminal
intelligence. Subsection (1) provides that the offence applies in relation to
declared criminal intelligence that has not been revoked and information
that is or ever was the subject of an application under part 6, division 2
whether or not a declaration was made. It also provides that the offence
applies to information mentioned in sections 64(4) or 76(4) and contained
in an informant affidavit filed under sections 64 or 76.
Subsection (2) provides that is an offence to disclose the information and
intelligence described in subsection (1) unless any of the circumstances set
out in subsections (2)(a) through to (d) apply. The penalty provided for the
offence is 85 penalty units or one year's imprisonment.
Subsection (3) provides that it is a defence if the information or intelligence
was in the public domain at the time the disclosure took place or if the
defendant had an honest and reasonably held belief that the information or
intelligence they disclosed was not information or intelligence described in
subsection (1).
Subsection (4) provides that the defence of honest and reasonable but
mistaken belief set out in subsection (3)(b) will not be available if a
defendant receives a warning under section 131(2).
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PART 7 Criminal organisation public
interest monitor
Division 1 Appointment
Clause 83 subsections (1) and (2) allows the Governor in Council to
appoint a person as the criminal organisation public interest monitor
(COPIM) and to fix the terms and conditions of appointment.
Subsection (3) requires that the COPIM be appointed under this Act and
not the Public Service Act 2008.
Subsection (4) provides that the COPIM can also be appointed as the
Public Interest Monitor under the other Acts mentioned.
Clause 84 sets out the qualifications that a person may have in order to be
eligible for appointment as a COPIM.
Clause 85 provides for the procedure that must to be followed by the
Minister when a COPIM is appointed or reappointed.
Division 2 Functions
Clause 86 sets out the core functions of the COPIM.
Clause 87 allows the Public Interest Monitor or Deputy Public Interest
Monitor to perform the functions of the COPIM if the COPIM is not
available.
Clause 88 requires an applicant to provide the COPIM with a copy of the
all the material that has been provided to the court. However, the COPIM
does not have access to material to the extent that the material discloses an
informant's name, current location, where the informant resides or a
position held by the informant in an organisation. Such material may refer
to an informant by way of a unique identifier. Subsection (4) requires the
COPIM to store the material provided by the Commissioner securely and
return that material after completing the COPIM's annual report.
Subsection (5) makes it clear that the COPIM is entitled to access to a
record, or to a transcript of a record of a hearing at which the COPIM
appears.
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Clause 89 allows the COPIM to pose questions to an applicant, examine
and cross examine any witness for the purpose of testing the
appropriateness and validity of any application made under this act. The
COPIM can make submissions to the court about the appropriateness of
granting any application.
Subsection (3) prohibits a COPIM from making any submission to the
court whilst a respondent or a legal representative of a respondent is
present in the court.
Subsection (4) provides the court with a discretion to exclude the COPIM
from a hearing during a period in which the respondent or a legal
representative of a respondent is present in the court room.
Subsection (5) defines the meaning of `present'.
Division 3 Miscellaneous
Clause 90 provides that a person who is appointed to be a COPIM is
restricted from acting for certain persons and organisations both during and
after the COPIM's term of appointment and a failure to comply is conduct
capable of constituting unsatisfactory professional conduct or professional
misconduct under the Legal Profession Act 2007.
Clause 91 provides for the functions of the Law, Justice and Safety
Committee in relation to the COPIM and confirms that the Committee must
not be given access to any criminal intelligence.
Clause 92 requires the COPIM to provide an annual report to the Minister
about the performance of the COPIM's functions under the Bill and such
report may contain recommendations.
Subsection (4) requires the Minister to table a copy of the report in the
Legislative Assembly within 14 days of the Minister receiving the report.
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PART 8 Corresponding orders
Clause 93 allows the Commissioner to apply to the registrar of the
Supreme Court for the registration of a corresponding order (defined in
schedule 2) from another state or territory.
Subsection (2) requires the Commissioner's application to be accompanied
by specific documents.
Subsection (3) sets out further specific information which must be stated in
the application.
Clause 94 subsection (1) sets out what the registrar must be satisfied of
before the registrar can register the corresponding order.
Subsection (2) requires the registrar (subject to the registrar's obligations
under section 95) to register the corresponding order whether or not the
respondent has been given notice of the application.
Subsection (3) provides that the period of registration for a corresponding
order in Queensland must correspond with the period of registration
provided for by the court in the jurisdiction in which the corresponding
order was originally made.
Subsection (4) allows for a regulation to made which will prescribe the way
in which a corresponding order or varied corresponding order can be
registered, recorded and accessed.
Clause 95 requires the registrar to refer the corresponding order to the court
for adaptation or modification if the applicant requires it or if the registrar
believes that it is necessary for its effective operation in Queensland.
Subsection (3) provides that the Commissioner is required to serve a copy
of the application for registration of the corresponding order along with the
other specified documents on the respondent.
Subsection (4) requires the Commissioner to personally serve the
documents specified in subsection (3) on the respondent. If personal
service is not practicable then service is by public notice. The
requirements for personal service and service by way of public notice are
contained in part 9.
Subsection (5) allows an application to be heard in the absence of a
respondent only if the service requirements in subsections (3) and (4) have
been complied with.
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Criminal Organisation Bill 2009
Subsection (6) allows the court the discretion to direct the Commissioner to
provide a further appearance notice to the respondent regardless of whether
the Commissioner has complied with subsections (3) and (4).
Subsection (7) allows the court to vary the corresponding order in any way
for the purposes of ensuring that the order will be able to operate
effectively in Queensland.
Subsection (8) provides the court with matters that the court must take into
account before deciding whether to vary and how to vary a corresponding
order in accordance with subsection (7).
Subsection (9) requires the registrar to register a corresponding order
varied by the court.
Subsection (10) defines the term appearance notice and specifies the
information that must be contained in such an appearance notice.
Clause 96 subsection (1) requires the registrar to provide the
Commissioner with a certificate of registration which has attached to it a
copy of the registered corresponding order. This must be done by the
registrar within two business days of the registrar registering the
corresponding order.
Subsection (2) prohibits the registrar from seeking any fee or
reimbursement for expenses that might be incurred by the registrar under
part 8.
Subsection (3) requires the Commissioner to serve the documents provided
by the registrar in subsection (1) on the respondent as soon as reasonably
practicable after receiving the documents.
Subsection (4) requires personal service unless it is not practicable or the
respondent is an unincorporated association in which case service is by
public notice. The requirements for personal service and service by way of
public notice are contained in part 9.
Subsection (5) sets out the service requirements of the Commissioner in
circumstances where the respondent is a child (as defined in schedule 4 of
the Juvenile Justice Act 1992). The Commissioner is required to provide a
copy of the order to the parent of the child respondent if the parent is able
to located. The subsection provides that if any of the terms contained in the
corresponding order are likely to result in the child respondent needing to
change their place of residence the Commissioner must provide a copy of
the corresponding order to the chief executive of child safety in addition to
providing it to the parent of the child.
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Criminal Organisation Bill 2009
Subsection (6) provides that if the Commissioner fails to properly comply
with subsections (3) or (5), this will not affect the validity of the
registration of the corresponding order.
Subsection (7) provides that a registered corresponding order will not be
binding in any way upon the person against whom it is made until the
person is served in accordance with the requirements of subsections (3) and
(4).
Clause 97 subsection (1) provides that a registered corresponding order has
the same effect as if the order had been made in Queensland and therefore
it may be enforced accordingly.
Subsection (2) provides that subsection (3) applies if the corresponding
order is varied under section 95 without notice to the respondent or in the
respondent's absence.
Subsection (3) provides that where the corresponding order is varied in the
absence of the respondent until a respondent is notified of the variation
then the registered corresponding order will only be effective and
enforceable against a respondent as if it had never been varied.
Clause 98 subsection (1) allows the Commissioner or the respondent to
apply to the court for a variation of a registered corresponding order.
Subsection (2) requires a court to decide the application in accordance with
the criteria set out in this Bill for variations of orders made in Queensland.
Subsection (3) provides that with respect to a registered corresponding
control order, section 22 applies as if references to `control order' were
references to `registered corresponding control orders' and reference to
`controlled person' were references to the respondent.
Clause 99 subsection (1) allows the Commissioner or the respondent to
apply to the court for an order cancelling the registration of a registered
corresponding order.
Subsection (2) requires the court to treat any such application as if it were
an application for the revocation of an order of a similar type made in
Queensland.
Subsection (3) provides that sections 13, 15 and 23 apply to applications
made under this section as if references in those sections to local orders
were a reference to a registered corresponding order.
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Subsection (4) provides that if the court cancels the registration of the
registered corresponding order, then that order immediately stops having
effect in Queensland.
PART 9 GENERAL
Division 1 Recruitment offence
Clause 100 creates an offence of recruiting persons to become a member of
a criminal organisation. The offence applies to a member of a criminal
organisation or a controlled person, who recruits or attempts to recruit
anyone to become a member of, or associate with a member of, a criminal
organisation. The offence is a crime and carries a maximum penalty of five
years imprisonment. The term recruit is defined in schedule 2.
Division 2 general provisions about proceedings
for orders
Clause 101 provides that the Uniform Civil Procedure Rules 1999 (UCPR)
apply to all applications to the extent that those rules are consistent with the
provisions of the Bill.
Clause 102 outlines the applicable process when the Commissioner is
required or authorised under the Bill to effect service by public notice.
Clause 103 allows a police officer to serve on any person, any document
which is required or permitted to be served by the Commissioner.
Clause 104 subsection (1) provides that the section applies to any provision
which requires service of anything by an applicant to be by personal
service, or if personal service is not practicable or the service is on an
unincorporated association or group of persons, by way of public notice.
Subsection (2) requires an applicant who serves any thing by way of
personal service, to file an affidavit of personal service with the court as
soon practicable after service has been effected. The subsection further
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requires that the affidavit of personal service be sworn by the person who
physically performed the personal service of the thing.
Subsection (3) requires that when a thing is served by public notice, the
applicant must file an affidavit no later than the end of the business day
after which publication of the public notice occurred. The subsection
provides that the affidavit must state the reasons why it was not practicable
for the applicant to personally serve the thing and then set out the steps the
applicant has taken to publish the notice.
Subsection (4) requires that the affidavit mentioned in subsection (3) must
be accompanied by a copy of the published notice in the state circulated
newspaper.
Subsection (5) requires that as soon as practicable after the affidavit in
subsection (3) is filed, a copy of that affidavit marked with the court seal
and a copy of the notice that was published in the state circulated
newspaper, must be sent by registered post to the respondent at the
respondent's last known address.
Subsection (6) provides that if the respondent is an unincorporated
association or group of persons and the applicant is not aware of any
address for the respondent then subsection (5) does not apply unless the
applicant is aware of the address of a office holder of the association or
group.
Clause 105 subsection (1) provides that as soon as practicable after the
Commissioner files an application or is given notice of an application, the
Commissioner must make certain notifications to the Attorney-General and
the reporting officer. Reporting officer is defined in schedule 2.
Subsection (2) requires the Commissioner to give the registrar a notice in
the approved form when filing an application and when filing an
application under part 6.
Subsection (3) requires the Commissioner to notify the registrar with notice
in the approved form whenever the Commissioner files a document to
which section 77 applies.
Clause 106 allows that an applicant in any proceedings to apply to the court
for an extension of the return date. The application for extension must be
served on any other party to the proceeding in the same way that the act
provides for the original application to be served. The court may grant the
extension on any conditions that the court considers to be appropriate.
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Clause 107 subsection (1) provides that affidavits that are to be relied on by
any party to an application may only contain a matter if direct oral evidence
of that matter would be admissible.
Subsection (2) provides that nothing in subsection (1) prevents an affidavit
that is authorised under section 61 and admitted in evidence in an
application under part 6, being admitted into evidence for the purposes of
the court's consideration of the substantive application to obtain, vary or
revoke a criminal organisation order.
Subsection (3) defines the term substantive application as it used with
respect to this section.
Clause 108 subsection (1) provides for a right of appearance to any party to
a proceeding for an application or for an appeal or a review of an order.
Subsection (2) provides that there is limitation on the provision in
subsection (1) in respect of a party which is an organisation or a group of
persons. In such a case the organisation or group may be represented in
court by one i.e. the nominee. This subsection goes on to provide that apart
from any legal representatives, no other person other than the one nominee
can be present in the court at the hearing. The term legal representative is
defined in schedule 2.
Subsection (3) provides that the COPIM must be present at hearings unless
the court orders otherwise (see 89(4)).
Subsection (4) provides that hearings for applications are closed hearings
and subsection (5) provides an exhaustive list of persons who may remain
in the court.
Subsection (6) allows the Commissioner or other party to make
submissions and with the leave of the court, file further affidavits and call,
examine and cross-examine witnesses to the same extent as permitted in
any other proceedings conducted in the Supreme Court in Queensland.
Subsection (7) provides that this section does not apply in any way to
hearings that take place under sections 70 or 78.
Clause 109 subsection (1) provides that a person can not be provided with
access to a record of a hearing or to a transcript of a record, other than as
provided for under the Bill.
Subsection (2) requires the reporting officer, to give to the Commissioner
upon the Commissioner's request, an electronic copy of any transcript for
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Criminal Organisation Bill 2009
any hearing of an application made under this Bill that is held in the official
records of the State Reporting Bureau.
Subsection (3) allows any person to apply to the Commissioner for a
transcript other than a transcript for a special closed hearing under section
70 or 78.
Subsection (4) provides that any application made to the Commissioner
under subsection (3) must be accompanied by a fee prescribed under a
regulation (if any).
Subsection (5) requires the Commissioner to grant an application made
under this section as soon as practicable.
Subsection (6) provides that nothing in this section limits a court or judge
being provided with records to transcripts of hearings. Further, it provides
that nothing in this section prevents the COPIM or reviewer being provided
with material.
Clause 110 provides that questions of fact in proceedings under this Bill
other than proceedings for offences are to be decided on the balance of
probabilities.
Clause 111 provides that in proceedings for applications each party must
bear its own costs, however, the court may award costs in the case of
frivolous or vexatious applications.
Clause 112 subsection (1) provides that this section applies if a criminal
organisation order is made, varied or revoked on the Commissioner's
application and if the respondent to that application is a child (as defined in
schedule 4 of the Juvenile Justice Act 1992).
Subsection (2) requires the Commissioner to provide a copy of that order as
soon as reasonably practicable to the chief executive of child safety and to
the parent of the child if the parent of the child can be found by the
Commissioner.
Subsection (3) provides that an order or variation of an order will have no
effect against a child until a police officer personally serves a copy of the
order or variation on the child.
Subsection (4) provides that subsection (3) applies despite any provision of
this Act that permits service by public notice.
Clause 113 subsection (1) provides that unless it is expressly stated
otherwise, a criminal organisation order can be renewed at any time either
before or after an order expires.
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Criminal Organisation Bill 2009
Subsection (2) provides that the provisions applying to an application for
the making of a order apply to applications to renew.
Subsection (3) provides that there is no limit on the number of times that a
criminal organisation order can be renewed.
Division 3 Proceedings for offence
Clause 114 provides that any offence against this Act that is not otherwise
defined as a crime or a misdemeanour is a summary offence.
Clause 115 provides that indictable offences against the Act may be dealt
with summarily at the prosecution's election. However, the matter must
proceed upon indictment if the magistrate is satisfied that the defendant
may not be adequately punished on summary conviction.
Clause 116 provides that in relation to indictable offences, only a
magistrate may hear and determine a summary trial or committal hearing.
The section also provides the level of penalty that may be imposed on a
summary conviction of an indictable offence.
Clause 117 provides that a proceeding for a summary offence against this
Act must start within one year after the offence is committed or within one
year after the commission of the offence comes to the complainant's
knowledge, but within two years after the commission of the offence.
Division 4 General police provisions
Clause 118 empowers police to enter and search premises and vehicles
without a warrant, in order to effect service where personal service is
required.
Clause 119 subsection (1) allows a police officer to require a person to
provide their personal details in certain circumstances which are outlined in
the subsection. The term personal details are defined in schedule 2.
Subsection (2) allows a police office to require persons found in the
circumstances set out in subsection (1) to provide proof that the personal
details provided are correct where it would be reasonable to expect that a
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Criminal Organisation Bill 2009
person would be in possession of such evidence or where they would
otherwise be able to give the evidence.
Subsection (3) provides that when a police officer requires information
from people under this section, the police officer must give the person a
warning about the offence provided in section 120.
Subsection (5) defines the term offence warning.
Clause 120 subsection (1) creates an offence of failing to comply with the
requirement to provide personal details to a police officer under section
119 without a reasonable excuse. A maximum penalty of 40 penalty units
applies.
Subsection (2) provides that without limiting other reasonable excuses a
defendant might have with respect to subsection (1) if the police officer
requires the personal details on the basis that the defendant was suspected
of committing an offence and it is subsequently proved that the defendant
did not commit that offence, that in itself will amount to a `reasonable
excuse' for the purposes of subsection (1).
Clause 121 Subsection (1) sets out the circumstances in which this section
applies.
Subsection (2) provides that if the circumstances in subsection (1) apply
then a police officer does not need to disclose the officer's name or address
to anyone in the course of investigating or performing an officer's functions
in relation to those circumstances.
Subsection (3) provides that subsection (2) does not affect any of the
officer's duties as set under chapter 14, part 6 of the Police Powers and
Responsibilities Act 2000.
Clause 122 Subsection (1) requires the Commissioner to keep a register of
information about declarations and orders.
Subsection (2) sets out the information that must be contained in the
register.
Subsection (3) sets out when information about a control order or
registered corresponding order can be published on the register.
Subsection (4) allows the Commissioner to provide any person with
information contained on the register.
Subsection (5) allows the Commissioner to publish the information
contained in the register in a state circulated newspaper.
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Subsection (6) prohibits the Commissioner from disclosing confidential
information about a child defined under s.284 of the Juvenile Justice Act
1992 other than for the purposes of the Police Service Administration Act
1990, part 10.
Clause 123 prohibits the Commissioner from delegating the power to make
applications to anyone other than a deputy commissioner or an assistant
commissioner. However, the Commissioner may delegate the power to
apply for public safety orders without notice to a commissioned officer.
The section further prohibits the Commissioner from delegating any other
powers other than to a commissioned officer.
Division 5 Appeals
Clause 124 applies to proceedings for an appeal in relation to an order
(including the extension or variation of an order) other than a fortification
removal order. The section provides the appeal does not stay the order.
However, the court or a judge of the court may grant a stay if satisfied that
it is appropriate having regard to the likely impact of the stay on the ability
to disrupt the criminal nature of the criminal organisation and its
membership and any other relevant matter.
Clause 125 provides that only one appeal lies to the Court of Appeal from a
declaration and only one appeal lies from any order varying, refusing to
vary or revoking a declaration. This clarifies that the respondent
organisation is the only entity with standing to appeal.
Clause 126 requires the Court of Appeal to hear expeditiously, appeals
from a decision on an application for a criminal organisation order or for
any variation, extension or revocation of such an order.
Division 6 Reviews of Act
Clause 127 requires the responsible Minister to ensure that reviews of the
Act are carried out in accordance with this division.
Clause 128 requires the reviews to be undertaken by a retired Supreme
Court judge who is appointed by the Minister.
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Criminal Organisation Bill 2009
Clause 129 requires an annual review to determine whether the powers
under the Act have been exercised appropriately.
Clause 130 requires the Act to be reviewed as soon as reasonably
practicable five years after commencement to decide whether the Act is
operating effectively and meeting its objectives.
Clause 131 subsection (1) requires that a reviewer be given access to any
criminal intelligence that accompanied any application that falls under the
scope of the review.
Subsection (2) requires a reviewer who provides criminal intelligence to a
person in the exercise of the reviewer's functions to warn that person about
the confidential nature of the information and the unlawful disclosure
offence contained in section 82.
Subsection (3) provides that a contravention of subsection (2) by a reviewer
is not an offence.
Clause 132 subsection (1) requires the reviewer to prepare and provide a
report to the Minister after completing any review required under this
division.
Subsection (2) requires that a report provided under subsection (1) not
contain any criminal intelligence.
Subsection (3) allows a report required under subsection (1) to include
recommendations.
Subsection (4) requires the responsible Minister to table a copy of any
report received under subsection (1) in the Legislative Assembly.
Division 6 Miscellaneous provisions
Clause 133 subsection (1) prohibits a person who has been employed as a
police officer from acting as a legal representative for certain persons and
organisations.
Subsection (2) provides that a failure by a lawyer to comply with
subsection (1) is capable of constituting unsatisfactory professional
conduct or professional misconduct under the Legal Profession Act 2007.
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Subsection (3) provides that a failure of a legal representative, other than a
lawyer, to comply with subsection (1) is deemed to be a suitability matter
for the purposes of section 9 of the Legal Profession Act 2007.
Clause 134 subsection (1) prohibits a person who has been employed as a
police officer from acting as a security provider under the Security
Providers Act 1993 for certain persons and organisations.
Subsection (2) provides that a failure by a person to comply with
subsection (1) is capable of constituting evidence that a person is not an
appropriate person to hold a license under the Security Providers Act 1993.
Clause 135 subsection (1) provides immunity from civil liability to
officials who act honestly and without negligence under this Act.
Subsection (2) provides that if subsection (1) prevents civil liability
attaching to an official that civil liability will then attach to the State.
Subsection (3) defines the word `official' as it is used in this section.
Clause 136 provides a number of evidentiary provisions. Subsection (3)
provides that unless a party to a proceeding requires proof of it, the power
of a police officer to do anything under the Act is presumed.
Clause 137 provides that the Act will expire seven years after its
commencement.
Clause 138 allows the chief executive and the registrar to approve forms for
their use under the Act.
Clause 139 allows the Governor in Council to make regulations under the
Act.
PART 10 Transitional provisions
Clause 140 applies when under the Act, a court may consider the criminal
history, activity, behaviour or anything else relating to a person. The court
may consider such information or activity whether or not it pre-dates the
commencement of the Act.
Clause 141 provides that sections 133 and 134 only apply to persons who
stop being employed as police officers after the commencement of this Act.
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PART 12 Amendment of Acts
Division 1 Amendment of Bail Act 1980
Clause 142 provides that this division amends the Bail Act 1980
Clause 143 amends section16 (3) to reverse the presumption in favour of
bail in relation to offences under section 24 (Contravening of control order)
and section 38 (Contravention of public safety order). The presumption in
favour of bail is also reversed with respect to an offence against section 359
(Threats) of the Criminal Code when the circumstance of aggravation
under section 359(2) is alleged.
Division 2 Amendment of Criminal Code
Clause 144 provides that this division amends the Criminal Code.
Clause 145 amends section 1 of the Criminal Code to provide new
definitions for the terms criminal organisation, law enforcement agency
and law enforcement officer.
Clause 146 inserts a new heading into part 3, chapter 12 of the Criminal
Code entitled `Unlawfully obtaining or disclosing information'.
Clause 147 inserts a new section 86 into the Criminal Code entitled
`Obtaining of or disclosure of secret information about the identity of
informant' which creates two new offences.
The first offence applies to a person who, without any lawful justification
or excuse, obtains or attempts to obtain secret information in the possession
of a law enforcement agency or law enforcement officer about the identity
of a `criminal organisation informant'. The maximum penalty for this
offence is 10 years imprisonment.
The second offence applies to a person who publishes or communicates,
without any lawful justification or excuse, secret information in the
possession of, or obtained from a law enforcement agency or law
enforcement officer about the identity of a `criminal organisation
informant'. The maximum penalty for this offence is 10 years
imprisonment.
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Criminal Organisation Bill 2009
The section defines the terms: `criminal organisation informant',
`information about the identity of a criminal organisation informant' and
`secret information in the possession of a law enforcement agency or law
enforcement officer.
Clause 148 amends section 119B of the Criminal Code to extend to the
offence to acts of intimidation and to insert a circumstance of aggravation
rendering an offender liable to a maximum penalty of 10 years
imprisonment if the offence is committed in relation to a proceeding before
a court under this Act. The terms `injury or detriment `and `intimidation'
are defined.
Clause 149 amends section 207A of the Criminal Code to remove the
definitions for the terms `law enforcement agency' and `law enforcement
officer'. The definitions are relocated to section 1 of the Criminal Code.
Clause 150 amends section 359 (Threats) of the Criminal Code to insert a
circumstance of aggravation, rendering the offender liable to 10 years
imprisonment, where the threat is made to a law enforcement officer or a
person assisting a law enforcement officer when or because the law
enforcement officer is investigating activities of a criminal organisation.
Clause 151 amends section 359E (Punishment of unlawful stalking) to
insert a circumstance of aggravation, rendering the offender liable to 10
years imprisonment, if any one of the acts that constitute unlawful stalking
are done when or because the officer is investigating the activities of a
criminal organisation.
Division 3 Amendment of Evidence Act 1977
Clause 152 provides that this division amends the Evidence Act 1977.
Clause 153 subsection (1) amends section 21A(1) to insert four new
definitions.
Subsection (2) extends the definition of `special witness' used in section
21A to include a person who is to give evidence about the commission of a
serious criminal offence committed by a criminal organisation or a member
of a criminal organisation.
Subsection (3) amends section 21A(2)(a) so that it widens the type of
proceedings in which a person can be excluded from the court room or
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Criminal Organisation Bill 2009
obscured from the view of the special witness by allowing other types of
proceedings to be prescribed.
Subsection (4) amends section 21A(2)(a) to widen its application to apply
to any person who is a party to the proceeding in question. This gives
further effect to the amendment in subsection (3) in that it anticipates
proceedings that are not necessarily criminal proceedings.
Division 4 Amendment of Judicial Review Act
1991
Clause 154 provides that this division amends the Judicial Review Act
1991.
Clause 155 excludes this Act from judicial review under the Judicial
Review Act 1991.
Division 5 Amendment of Legal Profession Act
2007
Clause 156 provides that the division amends the Legal Profession Act
2007.
Clause 157 amends section 9(1) to provide that another Act may prescribe
a matter to be a `suitability matter' for the purposes of the Legal Profession
Act 2007, for example, section 133(3) of this Act.
Division 6 Amendment of Parliament of
Queensland Act 2001
Clause 158 provides that the division amends the Parliament of
Queensland Act 2001.
Clause 159 amends section 85 which provides for the areas of
responsibility of the Law Justice and Safety Committee to insert a note that
directs any reader of the provision to the functions to the Law Justice and
Safety Committee as set out in section 91 of this Act.
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Criminal Organisation Bill 2009
Division 7 Amendment of Police Powers and
Responsibilities Act 2000
Clause 160 provides that this division amends the Police Powers and
Responsibilities Act 2000.
Clause 161 amends chapter 7, part 1 to insert new section 150AA which
provides definitions for two new terms to be used throughout chapter 7,
part 1. The two new defined terms are `criminal organisation control order
property' and `warrant evidence or property'.
Clause 162 amends section 150(1) so that a police officer may apply for a
warrant to enter and search a place to find criminal organisation control
order property.
Clause 163 provides an amendment consequential to the amendment in
section 162.
Clause 164 provides an amendment consequential to the insertion of the
new terms as provided in section 161.
Clause 165 provides an amendment consequential to the inclusion of
criminal organisation control order property in section 150 (1) of the
PPRA.
Clause 166 provides an amendment consequential to the insertion of the
new terms as provided in section 161.
SCHEDULE 1 Serious criminal offences under
Criminal Code
This schedule provides a list of offence to be included in the definition of
Serious Criminal Offence as provided in section 7(1)(c) of this Act.
SCHEDULE 2 Dictionary
© State of Queensland 2009
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