SERIOUS AND ORGANISED CRIME (CONTROL) (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Second reading.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (17:03): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

In 2007—2008 the Government began the process that would lead to the enactment of the Serious and Organised Crime (Control) Act 2008. Section 4 of that Act says:

4—Objects

(1) The objects of this Act are—

(a) to disrupt and restrict the activities of—

(i) organisations involved in serious crime; and

(ii) the members and associates of such organisations; and

(b) to protect members of the public from violence associated with such criminal organisations.

(2) Without derogating from subsection (1), it is not the intention of the Parliament that the powers in this Act be used in a manner that would diminish the freedom of persons in this State to participate in advocacy, protest, dissent or industrial action.

Section 10(1) of the Act provides that:

If, on the making of an application by the Commissioner [of Police for South Australia] under [Pt 2 of the Act] in relation to an organisation, the Attorney-General is satisfied that—

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

(b) the organisation represents a risk to public safety and order in this State,

the Attorney-General may make a declaration under this section in respect of the organisation.

Section 14(1) of the Act provides that:

The [Magistrates Court of South Australia] must, on application by the Commissioner, make a control order against a person (the defendant) if the Court is satisfied that the defendant is a member of a declared organisation

On 14 May 2009, the then Attorney-General for South Australia made a declaration about 'the Finks Motorcycle Club operating in South Australia (including but not limited to: the Finks MC, Finks M.C. Incorporated, Finks M.C. INC and the Finks)' under Part 2 of the Act. After the declaration was made, the Commissioner of Police applied to the Magistrates Court for a control order directed to a Mr Hudson. The application was not served on Mr Hudson. The magistrate, being satisfied, on the balance of probabilities that Mr Hudson was a member of a declared organisation (the Finks Motorcycle Club operating in South Australia), made a control order. By that order (made on 25 May 2009), Mr Hudson was prohibited from associating with other persons who are members of declared organisations (unless, in effect, the association occurred between members of a registered political party and not less than 48 hours prior notice was given to police). The order also prohibited Mr Hudson from possessing a dangerous article or a prohibited weapon. Shortly after being served with the order, Mr Hudson gave notice of objection. A control order was also sought against the first respondent, Mr Totani, but that application was stayed pending further proceedings.

Those pending proceedings ended in the High Court. On November 11, 2010 the High Court, by a majority of 6-1, decided that, at least in so far as the Magistrates Court was required to make the control order on a finding that the respondent was a member of a declared organisation, that Court was acting at the direction of the executive, was deprived of its essential character as a court within the meaning of Chapter III of the Commonwealth Constitution and that section was, therefore invalid (South Australia v Totani [2010] HCA 39). The net effect of that decision was that a key part of the legislative scheme in the Act was inoperable.

The State of New South Wales enacted the Crimes (Criminal Organisations Control) Act in 2009. That Act was a version of the South Australian Act, with this significant exception. Section 6 of the Act provides that the Commissioner of Police may apply to an 'eligible Judge' of the Supreme Court (rather than the Attorney-General) for a declaration that a particular organisation is a 'declared organisation' for the purposes of the Act.

On 6 July 2010, the Acting Commissioner of Police for New South Wales applied to a judge of the Supreme Court of New South Wales for a declaration under Part 2 of the Crimes (Criminal Organisations Control) Act 2009 (NSW) in respect of the Hells Angels Motorcycle Club of New South Wales. Wainohu is a member of the NSW chapter of the Hells Angels. He commenced an action in the original jurisdiction of the High Court seeking a declaration that the Crimes (Criminal Organisations Control) Act 2009 was invalid. On 23 June, 2011, the High Court, by a majority of 6-1, held the entire Act to be invalid, essentially because there was no requirement to provide reasons.

Considerations of General Policy

It is quite clear that the Government must respond decisively to the High Court decisions and do so comprehensively. Advice has been taken from the Crown Solicitor and the Solicitor-General about the effect and content of the decisions in Totani and Wainohu and how the Government might best respond to repair the legislation. That imperative has acquired an additional urgency and seriousness by reason of the recent outbreak of gun violence between individuals who clearly belong to groups where the individuals and groups care nothing for civilised society, nor the safety of the public. Difficult as it is, we, representatives of ordinary people who do not wave guns around and parade through public places wearing intimidation as a badge of honour, must draw lines and come down hard on these outlaws and bandits.

The Government tried to do so with special legislation four years ago. This did not work. The will of the Parliament and the elected representatives of the public offended complex legal principles. The High Court has effectively nullified the process in the Serious and Organised Crime (Control) Act 2008. Moreover, the High Court was very critical of the current South Australian provisions dealing with control orders. We must and will try again. It is timely to explore whether another, more constitutionally sound, method of tackling the general problem of criminal associations can be found.

The decision in Wainohu was indirectly relevant to the South Australian legislation. The Crimes (Criminal Organisations Control) Act 2009 (NSW) explicitly and directly conferred the exercise of administrative powers (under Part 2) upon the Supreme Court judges in their personal capacity. Section 13(2) states:

'If an eligible Judge makes a declaration or decision under this Part [ie Part 2], the eligible Judge is not required to provide any grounds or reasons for the declaration or decision (other than to a person conducting a review under section 39 if that person so requests).'

All members of the majority held that section 13(2) was invalid because it is an essential component of the judicial function required by Chapter III of the Commonwealth Constitution that a judge give reasons. The South Australian Act has such a provision, albeit in relation to an administrative process, and that will be removed.

Our governmental policy was informed by five factors:

All seven judges in Wainohu rejected challenges to the Act based on supposed infringements of the implied freedom of political communication and freedom of association said to be inherent in Chapter III of the Constitution. The reasoning is shortly expressed and little more can be said definitively about it except that express reference to freedoms in the Act under examination seemed to be significant.

There can be no guarantee that the High Court will not pick on another ground on which to act against the legislation. There is a challenge to section 14(2) orders at the present. French CJ and Kiefel J, in Wainohu quoted Gummow J in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 who said:

'the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes.'

This means, in effect, that there is a measure of uncertainty. We have, however, followed the High Court's judgements in these matters closely.

That being so, the Act must be amended so that it meets current understanding of the requirements of the Constitution. In light of the purposes for which it was enacted, there is a difficult balance to be struck between law enforcement interests (on the one hand) and civil libertarian interests (on the other).

The High Court in Wainohu dealt with an Act which used the model of the 'eligible judge' as declaration decision-maker rather than the Attorney-General or a judge acting in his or her judicial office. New South Wales’ 'eligible judge' model was not invalidated on that ground, the Court making it clear that, in this respect, it is the whole legislative package that is the issue, not one component of it. While Queensland has retained its judicial office, it has been decided that it would be wise to go along with Western Australia and the Northern Territory and use the 'eligible judge' model. The intentions of New South Wales are not clear.

That all being so, the redraft was to be based on the Western Australian Bill when in doubt, on the assumption that the States should stand together on the basic issues so far as is possible. For example, the corresponding laws/mutual recognition provisions are very much based on the Western Australian model.

The Government is determined to legislate so that (a) the effectiveness of the Government policy to harass and disrupt criminal gangs, particularly bikie gangs is restored and (b) the intent of the Government’s policy is not thwarted by constitutional flaws.

There has been extensive consultation on the response that should be made. In August 2011, 5 draft Bills on the subject were released for public comment. One was a series of amendments to the Serious and Organised Crime (Control) Act 2008 to repair the constitutional damage and to make some changes that, on advice, would improve its effectiveness. The other four were aimed at serious and organised crime by attacking what they do, rather than what they are. They will be the subject of a separate proposal. Lengthy and sometimes complicated comments were received from the Law Society/Bar Association, the Commissioner of Police, the Crown Solicitor, the Legal Services Commission, the judiciary and the DPP. It is no surprise that the comments varied from plain opposition to the view that the proposals did not go far enough.

There followed extensive and exhaustive consultation with the Solicitor-General, the Crown Solicitor and the police about all matters, from the basic structure of the reform Bill to the most intricate detail in drafting.

The amendments that are proposed in the repair Bill will be detailed below.

The Bill

The Declaration Process

The basic structure of the Act being divided into the declaration process and the control order process remains. But both have been extensively renovated. In terms of the declaration process, the most obvious change is that the declaration is not to be made by the Attorney-General but by a person designated as an 'eligible judge'. An 'eligible judge' is a judge of the Supreme Court who is appointed on his or her consent as an 'eligible judge' by the Attorney-General. While the judge retains all of his or her status in exercising this function, the function is not a judicial function but an administrative one. That is not unusual—judges have exercised administrative functions in their judicial capacity for a very long time (in issuing a listening device warrant, for example).

The process is that the Commissioner of Police may make a formal application to the eligible judge for a declaration that a specified organisation is a declared organisation. It is critical to note that, if a declaration is granted and the organisation is declared a declared organisation, it is just that—a declaration and no more. Individual rights and liberties are affected only consequentially after further action is taken.

The Bill then sets out the way in which the process flows. Since the eligible judge is not a court as such, any residual judicial rule-making power does not apply and some details will have to be left to regulations. In addition, the Bill provides that the practices and procedures of the proceedings before the eligible judge are to be determined by the eligible judge. The provisions dealing with the process are, nevertheless, quite detailed. The content of the application, provision for lodgement, disclosure, publication of the notice of application and, if necessary, notice of declaration with accompanying details and the making of submissions at hearings are all provided for.

The Bill sets out the criteria that apply for the making of the declaration. The test is set out in what is proposed to be section 11(1). Section 11(2) sets out the criteria to which the eligible judge may have regard, and, in so doing, enumerates a non-exhaustive list of the topics around which argument should be centred and section 11(4) makes it clear that members of the association may associate for the purposes of the Act merely by being members of the organisation. Nevertheless, it is clear that, for the test to apply, they must be members for the proscribed purposes. Section 11(5), by contrast, sets out matters which the legislature thinks are not of definitive consequence. It is made clear that the declaration may be made whether or not anyone turns up to contest it.

Extensive provision is made for the revocation of a declaration. Key points of interest are that (a) a respondent can only make one application in any given 12 months period; and (b) the revocation can only be made if there are no grounds for the making of a declaration at the time that the application for revocation is made. There are extensive and detailed process provisions dealing with notice and allied matters. The general provisions about submissions at hearings apply.

If a declaration or revocation is made, then reasons must be given for that decision and those reasons must be made available to any parties and published in the Government Gazette. This provision addresses the constitutional concerns raised by the High Court in Wainohu.

It is important to note that there are two provisions made about confidential information. The first and most obvious is about criminal intelligence. There is little additional that needs to be said about this. The Bill proposes to amend the existing Act along the lines already proposed in the Statutes Amendment (Criminal Intelligence) Bill 2010. Countervailing considerations of law and policy have already been extensively rehearsed in the context of that Bill. This Bill also allows for a respondent to make 'protected submissions' on a confidential basis. The provisions are to be found in proposed section 15. These provisions have been adapted from the New South Wales Act and the corresponding Western Australian Bill.

Lastly, it is not to be contemplated that a declaration can be thwarted or the process of declaration voided by the simple process of reorganisation of the declared organisation. There is a deeming provision that attaches to the same organisation in a substantially reformed state and provisions for the Commissioner of Police to certify that an organisation is a declared organisation. Such certification is proof of that fact in the absence of evidence to the contrary.

Control Orders

Although the High Court did not in any case declare that the control orders as such were constitutionally impermissible, the opportunity has been taken to extensively renovate and replace the provisions of the Act dealing with control orders. The application for the making of a control order is to be made to the Supreme Court. Proposed section 22(2) sets out the criteria for the making of a control order. It suffices if the respondent is a member of a declared organisation. This is where the declaration process begins to bite. That and the other criteria closely resemble those that currently exist. As with the declaration process, the provisions contain a list of matters which are a non-exhaustive list of those matters which the legislation suggests the Court should take into account.

The Commissioner of Police may apply for a control order or an interim control order. An interim control order may be made ex parte but, if that is so, the control order does not take effect until personally served and, once served, there are extensive rights for the subject of the control order to go back to court and contest the order. In either case the control order or interim control order (as the case may be) stays in force for the period specified in the order itself.

Proposed section 22(5) sets out a menu for the contents of a control order. These have been extensively renovated to include prohibition from exercising a licence of any kind prescribed, possessing articles, weapons and a specified amount of cash and specifying what kind of electronic communication (in particular) the subject of the control order may use.

There are supporting provisions made for the variation or revocation of control orders and the consequential or ancillary orders that the court may make. Particular provision is made for securing and confiscating any article or weapon that is the subject of a control order and which the court orders to be seized and confiscated.

It is an offence to knowingly or recklessly contravene a control order, punishable by a maximum of 5 years imprisonment. Other associated offences are described below.

Evidentiary Provisions

It should be noted that, in relation to the declaration process, it is provided that the rules of evidence do not apply (this being an administrative proceeding). By contrast, control orders being a judicial proceeding, the ordinary rules of evidence apply, subject to proposed section 22G.

There is another significant evidentiary provision dealing with control order applications. It is to be found in proposed section 22G. The idea here is that evidence, documents and material found established by another court in convicting or sentencing an offender should also be admissible in control order proceedings and the court permitted to draw such conclusions as it likes from those facts. This accords with the general principle, well established in civil and criminal law, shortly referred to as res judicata—or, slightly more accurately, as transit in rem judicatam. This provision also allows for the admissibility of police antecedent reports. The general idea is extended to court reasons and sentencing remarks. It might be thought odd to refer to court reasons—but they may be relevant. In Warren v Coombes (1979) 142 CLR 531 at 551, the rule was stated that:

[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.

New Offences and Liability

There are a few new offences proposed in this Bill. Proposed section 34A makes it an offence to permit premises to be habitually used as a place of resort by members of a declared organisation. It will also be an offence to be knowingly concerned in the management of premises habitually used as a place of resort by members of a declared organisation. These offences, and the presumptions that back them, are designed not only to attack club-houses and the like, but also regular gatherings at particular licensed premises (for example). They cannot be criticised as being unconstitutional—for they are based on very similar summary offences aimed at prostitution, bawdy and gaming house and brothel-keeping. It is thought that this is an apt analogy.

It is to be an offence for any person who is a member of a declared organisation or who is subject to a control order to recruit, or attempt to recruit anyone to be a member of a declared organisation, or encourage anyone to associate with a member of a declared organisation. The offences will require proof of knowledge or recklessness as to the declared organisation and member of the declared organisation elements.

It is to be an offence to disclose information that has been properly classified by the Commissioner of Police as criminal intelligence. It will be a defence to an offence under this provision for the accused to establish that he or she did not know and had no reason to believe that the information was classified as criminal intelligence.

All of these offences are punishable by imprisonment for 2 years—that is to say, at the top of the summary range.

Section 39X is novel. The essence of this section is to create a new civil remedy. Where a member of a declared organisation is found to be civilly liable in damages and where that liability arose from conduct done for the benefit of the organisation or at the direction of or in association with the declared organisation, then, in addition to that liability, the organisation and all the members of that organisation are liable for the damages.

Corresponding Orders

The Bill contains extensive and detailed provisions about a scheme of registration and enforcement of corresponding declarations and control orders. These are based on the Western Australian model and should not be controversial. The essence of the policy behind the provisions (without all the detail) is that the co-operative nature of the scheme dictates that, if another jurisdiction makes one of these orders, then we should enforce it by administrative registration so far as is possible and that, if those with an interest in having it revoked or varied want to do so, they must return to the originating jurisdiction and make the relevant application there in accordance with the law by which the order in question was made.

Miscellaneous Provisions

The Bill states that, in the context of both control orders and declarations, if a particular person is displaying the insignia of an organisation (say, by a tattoo), then that person is presumed, in the absence of proof to the contrary, to be a member of that organisation.

The Act is to be, at base, a no costs jurisdiction. People who litigate proceedings under this Act can do so at their own expense. There are two exceptions to this. The first is the obvious exception relating to frivolous or vexatious proceedings or applications, or where one party has unreasonably caused another party to incur costs. The second exception addresses the case where a representative of a party causes costs to be wasted, in which case the presiding authority may choose from a menu of options by which to visit the consequences of negligence or incompetence on that representative.

There are special provisions dealing with the application of these provisions should a respondent be a child. These are modelled on the Western Australian provisions.

There are transitional provisions. While a declaration made under the previous incarnation of the Act will no longer remain in force, a control order made under the previous provisions will remain in force. There is one such control order.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal

Part 2—Amendment of Serious and Organised Crime (Control) Act 2008

4—Amendment of section 3—Interpretation

This clause makes consequential amendments to the definitions contained in the current Act. In particular, definitions are introduced to allow for registration of corresponding declarations and orders of other jurisdictions and the definition of declared organisation is altered to reflect the contents of proposed new Part 2, which provides for the making of declarations in relation to organisations by eligible Judges.

5—Insertion of section 5A

This clause inserts a general provision dealing with the use of criminal intelligence in proceedings under the Act.

6—Substitution of Parts 2 and 3

This clause substitutes new Parts as follows:

Part 2—Declared organisations

This proposed new Part provides for the making of declarations by eligible judges in relation to organisations.

Under the proposed Part, the Commissioner may apply to an eligible Judge for a declaration in relation to an organisation. An eligible Judge is a Judge who has been appointed as such by the Attorney-General. An appointment can only be made if the Judge has consented to being the subject of an appointment.

The Part sets out various requirements in relation to the content of applications to eligible Judges by the Commissioner and the way in which notice of applications is to be given.

An eligible Judge may make a declaration in relation to an organisation if he or she is satisfied as to both of the following:

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

the organisation represents a risk to public safety and order in South Australia.

The matters to which an eligible Judge may have regard in considering whether or not to make a declaration include—

information suggesting that a link exists between the organisation and serious criminal activity; and

any convictions recorded against current or former members of the organisation or persons who associate, or have associated, with members of the organisation; and

information suggesting that current or former members of the organisation or persons who associate, or have associated, with members of the organisation have been, or are, involved in serious criminal activity, whether directly or indirectly and whether or not the involvement resulted in convictions; and

information suggesting that members of an interstate or overseas chapter or branch of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and

anything else the eligible Judge considers relevant.

The Commissioner and the organisation to which an application under the proposed Part relates are entitled to make oral submissions to the eligible Judge and may, with permission, provide written submissions. A member or former member of the organisation, or another person who may be directly affected by the application, may provide written submissions and, with the permission of the Judge, make oral submissions.

A member or former member of the organisation, or another person who may be directly affected by the application, may, if he or she does not wish to appear at the hearing, apply to the Judge to make a protected submission, that is, a submission (whether oral or written) made by a person who has reasonable grounds to believe that he or she may be subjected to action (whether directly or indirectly) comprising or involving injury, damage, loss, intimidation or harassment in reprisal for making the submission. If the eligible Judge is satisfied that the applicant is eligible to make a protected submission, he or she must notify the applicant and the Commissioner accordingly. The Judge is required to take steps to maintain the confidentiality of the protected submission, though the Commissioner, or a legal representative of the Commissioner, is entitled to be present when a protected submission is made.

Reasons for the making of a declaration or decision under the proposed Part must be made available by the eligible Judge to the Commissioner, the organisation and other persons who made or provided submissions. The Judge is also required to ensure that written reasons for the declaration or decision are published in the Gazette.

A declaration remains in force unless and until it is revoked under proposed section 14, which provides that an eligible Judge who has made a declaration in relation to an organisation may revoke the declaration at any time on application by the Commissioner, the organisation, a person who made or provided submissions at the hearing of the application or (with the permission of the Judge) any other member or former member of the organisation or a person directly affected by the declaration. Section 14 sets out various requirements and restrictions in relation to applications under the section.

A change of name or in membership does not affect a declared organisation's status and if members of a declared organisation substantially reform themselves into another organisation, that organisation is taken to form a part of the declared organisation (whether or not the organisation named in the declaration is dissolved).

It is also made clear that nothing prevents the making of a declaration in relation to an organisation that has been the subject of a previously revoked declaration.

Part 3—Control orders

Proposed new Part 3 provides for the making of control orders by the Supreme Court (on application by the Commissioner of Police) and makes provision in relation to the sorts of prohibitions that may, or must, be included in a control order. Unlike the current section 14(1), proposed new section 22 does not purport to direct the court to make a control order in any circumstances. A control order remains in force for the period specified in the order or until revoked. The Part also provides for the making of interim control orders (while the application for a control order is being determined) and for the variation and revocation of control orders. An appeal would also lie under the Supreme Court Act in relation to judgements under the Part.

Under proposed section 22, a control order may be made in relation to a person if the Court is satisfied that—

the respondent is a member of a declared organisation; or

the respondent—

has been a member of an organisation which, at the time of the application for the order, is a declared organisation; or

engages, or has engaged, in serious criminal activity,

and associates or has associated with a member of a declared organisation; or

the respondent engages, or has engaged, in serious criminal activity and associates or has associated with other persons who engage, or have engaged, in serious criminal activity.

The Court must also be satisfied that the making of the order is appropriate in the circumstances.

An interim control order may be made on an application under section 22 if the Court is satisfied that it could make a control order under section 22 in relation to the respondent. The Commissioner or the respondent may apply to the Court for an order for variation or revocation of a control order. If an interim control order or interim variation order is made without notice to the respondent, the respondent has a right to object to the order.

Proposed section 22G provides for the admissibility of certain evidence (such as evidence or material tendered or relied on in other proceedings, criminal history reports and reasons given by a court in sentencing a person or deciding an appeal) in proceedings under the proposed Part.

Under proposed section 22I, it is an offence to contravene or fail to comply with a control order or interim control order. The maximum penalty is imprisonment for 5 years. This section differs from current section 22 only insofar as the proposed new section refers to interim control orders as well as control orders.

7—Amendment of section 29—Disclosure of reasons and criminal intelligence

This clause makes consequential amendments to section 29.

8—Amendment of section 30—Service and notification

This clause makes consequential amendments to section 30.

9—Insertion of section 33A

Proposed section 33A provides that in proceedings under Part 4, which deals with public safety orders, a court is not bound by the rules of evidence but may inform itself as it thinks fit. The proposed section requires a court to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. These principles do not apply to proceedings for an offence.

10—Insertion of sections 34A and 34B

This clause inserts two new sections. Under the first, an owner, occupier or lessee of premises commits an offence if he or she knowingly permits the premises to be habitually used as a place of resort by members of a declared organisation. This section also makes it an offence for a person to be knowingly concerned in the management of premises habitually used as a place of resort by members of a declared organisation. The maximum penalty in each case is imprisonment for 2 years.

This clause also inserts a new provision under which a person who is a member of a declared organisation or is subject to a control order commits an offence if he or she recruits, or attempts to recruit, anyone to become a member of a declared organisation or encourages anyone to associate with another person who is a member of a declared organisation. The penalty is a maximum of 5 years in prison.

11—Substitution of Part 6

Proposed new Part 6 sets out procedures for registration, by the registrar of the Supreme Court or, in the case of corresponding declarations, the holder of a prescribed office, of declarations and control orders made in other States and Territories (corresponding orders).

Proposed Division 2 provides for the registration of corresponding declarations on application by the Commissioner. On registering a corresponding declaration, the registrar is required to specify the date on which the registration will expire, which will be the date on which the declaration would cease to be in force in the jurisdiction in which it was made. If the corresponding declaration remains in force for an indefinite period, the registration is for an indefinite period. A registered corresponding declaration comes into force in South Australia on the day after the day on which notice of the registration is published in the Gazette in accordance with the requirements of proposed section 39B. A registered corresponding declaration remains in force until the date specified by the registrar as the date on which it is to expire or until the registration is cancelled under proposed Division 3. That Division provides for cancellation by the registrar of the registration of a registered declaration where the registrar receives notice of the revocation of the corresponding declaration. The Division also provides for cancellation of registration by the Supreme Court on application by the respondent and cancellation by the registrar at the request of the Commissioner.

A registered corresponding declaration that has come into force has effect in South Australia as if it were a declaration under proposed Part 2.

Proposed Division 4 provides for the registration by the registrar of corresponding control orders on the application of the Commissioner. Proposed section 39I sets out requirements in relation to an application and also specifies certain circumstances in which an application cannot be made. If the registrar is satisfied that an application for registration of a control order has been properly made and that the order does not need to be adapted or modified for its effective operation in South Australia, the registrar is required to register the order. Proposed section 39K provides a mechanism by which a corresponding control order can be referred to the Supreme Court for the purpose of making an adaptation or modification that is necessary for the effective operation of the order in South Australia.

On registering a corresponding control order, the registrar is required to specify the date on which the registration will expire, which will be the date on which the order would cease to be in force in the jurisdiction in which it was made. If the corresponding order remains in force for an indefinite period, the registration of the order does not expire.

A registered corresponding control order comes into force when a copy of the order is served on the respondent and remains in force until the registration expires or is cancelled. While in force, the registered corresponding control order has effect in South Australia as if it were a control order made under proposed Part 3.

Proposed Division 5 deals with the consequences of a corresponding control order being varied or revoked in the jurisdiction in which it was made and also provides for the cancellation of the registration of a corresponding control order by the Court if satisfied, on application by the respondent, that the control order should not have been registered. The registration of a corresponding control order may also be cancelled by the registrar at the request of the Commissioner.

12—Insertion of sections 39T to 39Z

This clause inserts new sections as follows:

39T—General provisions on service of applications, orders and other documents

This proposed section gives the police certain powers in connection with personal service of documents under the measure. In addition, in certain circumstances, a document may be served on a person by leaving it for the person at premises with someone apparently over the age of 16 years or affixing it to the premises at a prominent place at or near to the entrance to the premises. A court may also make such orders as to service as it thinks fit.

39U—Representation of unincorporated group

This proposed section makes provision in relation to representation for an unincorporated group. In proceedings under the Act, such a group may be represented by a person or persons who satisfy the court or eligible Judge dealing with the proceedings that he or she is, or they are, appropriate representatives of the group or a part of the group

39V—Application of Act to children

Proposed section 39V provides that the Act applies in relation to a child in the same way as it applies to an adult. However, a control order may not be made in relation to a child who is under 16 years of age. Notice of a control order relating to a child is to be given by the Commissioner to a parent or guardian of the child in addition to any other prescribed person or person of a prescribed class.

39W—Costs

Generally each party to proceedings under the Act must bear the party’s own costs for the proceedings. However, the court or an eligible Judge may make other orders in accordance with this section where an application is frivolous or vexatious, an unreasonable act or omission has caused another party to incur costs or proceedings are delayed through the neglect or incompetence of a representative.

39X—Joint and several liability

If member of a declared organisation is found to have civil liability for damage or loss resulting from conduct engaged in for the benefit of the organisation or at the direction of, or in association with, the organisation, the organisation and each member is jointly and severally liable for the damage or loss.

39Y—Use of evidence or information for purposes of Act

Evidence or information obtained in accordance with an Act or law is not inadmissible in proceedings under the Act merely because the evidence or information was not obtained for the purposes of the Act.

Information properly classified by the Commissioner as criminal intelligence may be used by law enforcement and prosecution authorities for the purposes of the Act, and may be admitted in evidence or otherwise used in proceedings under the Act, despite the fact that the person who provided the information to the Commissioner has not consented to that use or has refused consent to such use.

39Z—Presumption as to membership

For the purposes of proceedings under the Act, a person will be presumed, in the absence of proof to the contrary, to be a member of an organisation at a particular time if he or she is, at that time, displaying the insignia of the organisation.

13—Repeal of section 41

This clause repeals section 41.

14—Insertion of section 42A

This clause inserts a new section requiring the Attorney-General to conduct a review of the operation of the Act as soon as practicable after the fourth anniversary of the commencement of the section. A report on the review is to be prepared and laid before each House of Parliament.

15—Amendment of section 43—Regulations

This clause amends the regulation making provision of the Act so that regulations under the Act may—

make different provision according to the matters or circumstances to which they are expressed to apply; and

provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Attorney-General, the Commissioner or some other prescribed body or person.

Schedule 1—Related amendments and transitional provisions

Part 1—Related amendments to Summary Offences Act 1953

1—Amendment of heading

2—Insertion of section 6

This clause inserts a new section into the Summary Offences Act 1953 prohibiting the disclosure without lawful excuse of information properly classified by the Commissioner as criminal intelligence under any Act. The maximum penalty is imprisonment for 2 years.

3—Amendment of section 74BA—Interpretation

This clause makes minor related amendments to the interpretation provision of the Part of Summary Offences Act 1953 dealing with fortifications.

Part 2—Transitional provisions

4—Declarations made before commencement of section 6

This transitional provision applies in relation to declarations made under section 10 of the Serious and Organised Crime (Control) Act 2008 as in force before the substitution of Parts 2 and 3 by section 6. Such a declaration will be of no force or effect.

5—Control orders made before commencement of section 6

This transitional provision provides that control orders made under section 14(2)(b) of the Serious and Organised Crime (Control) Act 2008 as in force before the commencement of section 6 continue as if made under Part 3 of the Act as in force after the commencement of new Parts 2 and 3.

Debated adjourned on motion of Hon. S.G. Wade.