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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-02-26 Daily Xml
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SERIOUS AND ORGANISED CRIME (CONTROL) BILL

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (19:49): I move:

That this bill be now read a second time.

I seek leave to have the detailed explanation of the bill inserted in Hansard without my reading it.

Leave granted.

Declared Organisations

The Serious and Organised Crime (Control) Bill 2007 will establish a procedure under which the Attorney-General is authorised to issue a declaration about an organisation on the application of the Commissioner of Police.

Upon receiving an application, the Attorney-General is required to publish a notice in the Gazette and in a newspaper circulating throughout the State. Members of the organisation and other people with a relevant interest will be invited to make submissions on the application. This provides an element of natural justice.

The Attorney-General is authorised to make a declaration about an organisation if satisfied, on reasonable grounds, that:

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

(b) the organisation is a risk to public safety and order.

When determining whether to make a declaration, the Attorney-General will be able to have regard to:

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

the criminal records of members or past members of the organisation;

evidence that members or past members have been involved (directly or indirectly) in serious criminal activity;

evidence about offending by members of overseas chapters or branches of the organisation;

any submission received by the Attorney-General; and

any other matter the Attorney-General considers relevant.

When considering whether the organisation represents a risk to public safety and order the Attorney-General will be able to have regard to incidents such as the shootings in Wright Street and at the Tonic Club and the bombings of OMCG premises.

Evidence for this purpose will include information certified as 'criminal intelligence' by the Commissioner for Police. Criminal intelligence is information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety.

The declaration process will be aimed primarily at OMCGs, although the Attorney-General may make a declaration about any organisation meeting the criteria. To accommodate this, organisation is defined broadly to include any incorporated body or unincorporated group, however structured. A declaration will be able to be made whether or not all of the members associated for a criminal purpose and whether or not the members associated for other, legitimate purposes.

A declaration will, of itself, impose no direct punishment on an organisation or its members. It will, however, be a used for associated purposes. For example, membership of a declared organisation will be a ground on which a control order will be able to be issued and the new consorting offence will prohibit a person associating or communicating with a member of a declared organisation.

A privative clause will try to protect the Attorney-General's decision from the full rigour of judicial review.

I do not hold out much hope of this preventing all judges substituting their own decisions on declared organisations for those of the elected Government.

Control Orders

The Bill provides for control orders. A control orders is an order, akin to a restraining order, that will, depending upon the terms of the order, prohibit a person from:

associating or communicating with specified persons or persons of a specified class;

entering or being in the vicinity of specified premises or premises of a specified class;

possessing specified articles or articles of a specified kind;

possessing a dangerous article or prohibited weapon (within the meaning of the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000).

Applications for control orders will be made by the Commissioner of Police to the Magistrates Court. The Court will be authorised to make an order against these people:

members of declared organisations;

former members of a declared organisation or persons who engage in serious criminal activity (as defined) and who regularly associate with members of declared organisations; or

persons engaged in serious criminal activity who regularly associate with persons who engage in serious criminal activity.

Control orders will used to break up associations that further serious criminal activity. They will be sought to prohibit members of declared organisation from associating and communicating with each other and attending premises associated with the organisation, such as clubhouses. They will also be sought to break up associations between members of declared organisations and others who commit offences with, at the behest of, or for the benefit of, declared organisations and their members. They will, however, have broader application and the Bill allows for orders to be made against people who, although not members or associates of declared organisations, engage in serious offending.

The process for obtaining a control order will follow the process for obtaining a fortification removal order under the Summary Offences Act, being:

the Commissioner will apply to the Magistrates Court for a control order. The initial application will be heard ex parte;

if, on the application of the Commissioner, the Court makes a control order, a copy of the order specifying the grounds on which it is made must be served on the defendant. The police will be given special powers to serve orders on unco operative defendants;

the defendant will have 14 days to lodge a notice of objection disputing the control order. A copy of the notice of objection must be served on the Commissioner;

on hearing the notice of objection, the Court will be authorised to vary or revoke the order;

both the defendant and the Commissioner will have a right of appeal to the Supreme Court on a decision by the Magistrates Court on a notice of objection (by right on a question of law or by leave on a question of fact);

a control order will not become effective until after any notice of objection has been heard and the order confirmed by the Court or, if no notice of objection is lodged, 14 days after the initial order is made;

an appeal to the Supreme Court by the defendant will not stay the operation of a control order.

A privative clause will try to protect any decision from judicial review.

Again, the Commissioner will be able to rely upon information certified as 'criminal intelligence' for the purpose of an application for a control order. Criminal intelligence will be disclosed to, and be taken into consideration by, the Court but will not be disclosed to the defendant, his legal representatives or any other person during the hearing of a notice of objection.

The offence of contravening or failing to comply with a control order will carry a maximum penalty of five years imprisonment. To take account of the wide range of offending, a discretion will be conferred on the prosecution to proceed summarily, having regard to the seriousness of the offending, if this is appropriate.

Public Safety Orders

The Bill authorises a Senior Police Officer to issue a public safety order for a person or a specified class of persons if satisfied that:

the presence of the person or members of the specified class at specified premises, a specified event or within a specified area, poses a serious risk to public safety or security, being a risk of death or serious physical harm to a person or serious damage to property; and

the making of the order is appropriate in the circumstances having regard to the extent to which the order will mitigate the risk to the public and other measures reasonably available to mitigate the risk.

To limit the application of the powers, when determining the risk the officer will be required to have regard to the nature of the group and any history of behaviour that previously gave rise to a serious risk to public safety or property. A public safety order may not be issued to prevent non violent protest, advocacy or dissent.

A public safety order will prohibit the person or persons of the specified class from entering or being on specified premises, attending a specified event or entering or being in a specified area.

'Serious risk to public safety or security' is defined to mean the risk of:

the death of, or serious physical harm to, a person; or

serious damage to property.

This is a high threshold test that is intended to restrict the use of public safety orders to appropriate circumstances.

A public safety order will be able to varied or revoked by a Senior Police Officer but will be time limited to either 72 hours or the duration of the event (whichever is the longest). An order will be able to be extended, however:

any extension beyond 72 hours will be by ex parte order of a court; and

a person subject to a public safety order will have the right to object to any extension of the order beyond seven days.

In urgent circumstances, a police officer will be able to seek an extension by telephone.

A public safety order and extension will have to be served on the people to whom it applies and will have to be accompanied by a notice setting out the date on which it was made, to whom it applies, its duration, the place, event or areas to which it applies and the penalty for breaching the order. Police will be given the power to serve a notice orally in urgent circumstances and special powers to serve orders on unco-operative people.

The offence of contravention or failure to comply with a public safety order carries a maximum penalty of five years' imprisonment. To take account of the wide range of offences, a discretion will be conferred on the prosecution to proceed summarily where the prosecution considers, having regard to the seriousness of the breach, that this is appropriate.

New offence of criminal association

SAPOL has advised that OMCG members actively recruit the services of members of less known street gangs and use them to do the high risk aspects of their criminal enterprises, including violence, carrying weapons and the manufacture and distribution of illegal drugs.

Currently, the only offence provision that SAPOL can use to break up these criminal associations is the offence of consorting in section 13 of the Summary Offences Act 1953. Section 13 provides:

13—Consorting

A person who habitually consorts with reputed thieves, prostitutes or persons having no lawful visible means of support is guilty of an offence.

Maximum penalty: $2,500 or imprisonment for 6 months.

SAPOL has advised there are problems with the offence of consorting, including the petty nature of the classification of persons (reputed thieves, prostitutes and persons with no visible means of support), the absence of any defence and that consorting does not include modern forms of communication.

SAPOL has recommended that the offence of consorting be replaced with a more modern offence that targets the association and communication between OMCG members and other serious criminals.

The Bill repeals section 13 and replaces it with an offence in a more modern form.

The new offence will prohibit a person from associating or communication (by any means) with:

members of declared organisations;

persons who are the subject of control orders.

The new offence will also prohibit persons with convictions for prescribed offences from associating or communicating with other persons with convictions for prescribed offences.

The concept of 'habitually' consorts is replaced with a requirement that the defendant associate or communicate with the person at least six times in 12 months.

An association or communication is to be disregarded if:

it occurs between close family members, in the course of a lawful occupation, business or profession, in the course of training, education or rehabilitation, in lawful custody or as a result of a court order, or in any prescribed circumstance, unless the prosecution proves the particular association or communication was unreasonable; and

the defendant proves he had a reasonable excuse for the particular association or communication. This defence will not, however, apply to a member of a declared organisation, a person on a control order or a person with prescribed convictions.

The Bill authorises a police officer to require the personal details of a person where he has reasonable cause to suspect that the person is associating with a member of a declared organisation, a person who is subject to a control order or a person who has a relevant criminal conviction.

The current penalty for consorting is a $2,500 fine or imprisonment for six months. To reflect that the new offence will involve associating or communication with more serious categories of persons, the maximum penalty for the new offence is five years' imprisonment. To take account of the wide range of offending, a discretion will be conferred on the prosecution to proceed summarily, having regard to the seriousness of the offending, if this is appropriate.

Review and Expiry of Act

The Bill provides that, before 1 July each year, the Attorney-General must appoint a retired judicial officer to conduct a review on whether the powers under the Act have been used appropriately having regard to the objects of the legislation. Both the Attorney-General and the Commissioner of Police must provide the person conducting the review with such information as he requires, although confidentiality obligations apply. The person must provide his report by 30 September each year, whereupon the Attorney-General must table a copy of the report in both Houses of Parliament.

The Bill also requires the Attorney-General to conduct a review of the operation and effectiveness of the legislation as soon as practicable after the fifth anniversary of the commencement of the legislation. The Attorney-General must prepare a report based on the review and table a copy of the report in both Houses of Parliament.

The Bill also contains a sunset clause. The Act will expire 10 years after the day on which the clause comes into operation.

Amendment of other Acts

Sections 248 and 250 of the Criminal Law Consolidation Act 1935

Section 248 of the Criminal Law Consolidation Act provides:

248—Threats or reprisals relating to duties or functions in judicial proceedings

(1) A person who causes or procures, or threatens or attempts to cause or procure, any injury or detriment with the intention of inducing a person who is or may be:

(a) a judicial officer or other officer at judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time); or

(b) involved in such proceedings as a witness, juror or legal practitioner, to act or not to act in a way that might influence the outcome of the proceedings is guilty of an offence.

(2) A person who causes or procures, or threatens or attempts to cause or procure, any injury or detriment on account of anything said or done by a judicial officer, other officer, witness, juror or legal practitioner in good faith in the discharge or performance or purported discharge or performance of his or her duties or functions in or in relation to judicial proceedings is guilty of an offence.

Section 250 of the Criminal Law Consolidation Act provides:

250—Threats or reprisals against public officers

A person who causes or procures, or threatens or attempts to cause or procure, any physical injury to a person or property:

(a) with the intention of influencing the manner in which a public officer discharges or performs his or her official duties or functions; or

(b) on account of anything said or done by a public officer in good faith in the discharge or performance or purported discharge or performance of his or her official duties or functions,

is guilty of an offence.

The maximum penalty for an offence under bother section 248 and 250 is: imprisonment for 7 years.

SAPOL advises that sections 248 and 250 are, at present, too narrow to catch the type of threatening behaviour engaged in by OMCG members and their associates. This behaviour is often more subtle than the making of overt threats and includes:

following a person;

loitering outside a person's home or place of work;

keeping person under surveillance;

communicating with a person (by letter, email, telephone etc.).

The more subtle intimidation will, in many cases, amount to unlawful stalking within the meaning of section 19AA of the Criminal Law Consolidation Act. However, the penalty for unlawful stalking is only three years' imprisonment (for the basic offence) and five years' imprisonment (for an aggravated offence).

The Bill amends sections 248 and 250 so that a person who engages in conduct that amounts to stalking within the meaning of 19AA(1)(a) with the intention prescribed in section 248 or 250 will commit an offence under those sections and be liable for the maximum penalty, seven years' imprisonment. Section 248 is also amended to make clear that threats etc., directed at a person who provides assistance to a criminal investigation will also amount to an offence whether or not a complaint or information is laid against the defendant.

Section 10A of the Bail Act 1985

Section 10 creates a statutory presumption in favour of bail where a person is charged with, but not convicted of, an offence. This means that a person should be released on bail unless, having regard to the matters in subsection 10(1), the bail authority believes that bail should be refused.

Section 10A creates exceptions to the general rule in section 10. Section 10A(1) provides, despite section 10, bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant's release on bail.

Section 10A(2) defines a prescribed applicant to mean an applicant taken into custody about certain serious motor vehicle offences where committed, or allegedly committed, by the applicant in the course of attempting to escape pursuit by a police officer or attempting to entice a police officer to engage in a pursuit.

SAPOL advises that intimidation of victims and other witnesses of and to OMCG offending by OMCG members and their associates is a key reason for lack of prosecution success against OMCG members. This is particularly so in cases such as blackmail. SAPOL advises that, since 2003, 47 incidents of blackmail have been identified, with most involving OMCG members or associates. Of the 47 known cases only five proceeded to prosecution.

Intimidation of victims and witnesses by OMCG members and associates harms the Crown's ability to secure convictions.

SAPOL advises that uncertainty about the release of OMCG members and associates on bail contributes to the fear held by victims and witnesses. At present, OMCG members and associates charged with blackmail or offences involving the intimidation of witnesses are subject to a presumption in favour of bail.

The Bill amends section 10A to add to the list of prescribed applicants a person taken into custody for:

the offence of breach of a control order;

the offences of breach of a public safety order;

the offence of blackmail (section 171 of the Criminal Law Consolidation Act);

offences under section 248 and 250 of the Criminal Law Consolidation Act (as amended).

Part 16 of the Summary Offences Act 1953

Part 16 into the Summary Offences Act 1953 contains the Anti fortification provisions.

Section 74BB(1) authorises the Magistrates Court, on the application of the Commissioner of Police, to issue a fortification removal order where satisfied that the premises are fortified; and

the fortifications have been created in contravention of the Development Act 1993; or

there are reasonable grounds to believe the premises are being, have been, or are likely to be, used for or in connection with the commission of a serious criminal offence, to conceal evidence of a serious criminal offence, or to keep the proceeds of a serious criminal offence.

The Bill amends section 74BB(1) to add as a ground on which a court may issue a fortification removal order, that the premises are owned by a member of a declared organisation or occupied or habitually used as a place of resort by members of a declared organisation.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause sets out the meaning of various terms used in the measure. These include such terms as Commissioner which means the Commissioner of Police; criminal intelligence which means information relating to actual or suspected criminal activity that may reasonably be expected to prejudice criminal investigations, reveal a confidential source or to endanger a person's life or physical safety were it to be disclosed; member (in relation to an organisation) includes an associate member or prospective member, someone who identifies themselves as belonging to the organisation or someone who is treated as if he or she belongs to the organisation; organisation means any incorporated or unincorporated body, however structured, that may be based within or outside South Australia and may have members who are not ordinarily resident in this State and may be part of a larger organisation; serious criminal offences which means indictable offences or summary offences prescribed by the regulations.

4—Objects

This clause sets out the objects of the measure and makes it clear that (without derogating from the objects) the measure is not intended to diminish the freedom of persons in the State to participate in advocacy, protest, dissent or industrial action.

5—Burden of proof

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

6—Extra territorial operation

This clause states that this measure is intended to apply within the State and outside the State to the full extent of the extra territorial legislative capacity of the South Australian Parliament.

7—Delegation

This clause provides that a power or function of the Commissioner under this measure must only be delegated (in accordance with the Police Act 1998) to a person who is a senior police officer. However, the function of classifying criminal intelligence under this measure may only be delegated by the Commissioner to a Deputy Commissioner or Assistant Commissioner of Police.

Part 2—Declared organisations

8—Commissioner may apply for declaration

Under this provision, the Commissioner may apply to the Attorney-General for a declaration in relation to a particular organisation. This application must be in writing, identify the organisation, set out the grounds on which the declaration is sought and the supporting information as well as the details and outcome of any previous application for a declaration made in relation to the organisation. The application must also be verified by a statutory declaration or declarations.

9—Publication of notice of application

Notice of an application for a declaration in relation to an organisation must be published in the Gazette and in a newspaper circulating throughout the State. The notice must invite members of the public to make submissions to the Attorney-General within 28 days in relation to the application.

10—Attorney-General may make declaration

Once the period for making submissions has elapsed, the Attorney-General may make a declaration in relation to the organisation if satisfied that some or all of the members of that organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity (whether or not the organisation also associates for other purposes), and the organisation also represents a risk to public safety and order. In determining whether to make a declaration, the Attorney-General may take into account such things as any information suggesting a link between the organisation and serious criminal activity; criminal convictions of current and former members or associates of the organisation; any information suggesting that current or former members or associates have been or are involved in serious criminal activity; any information suggesting that members of an interstate or overseas chapter or branch of the organisation associate for the purposes of organising, planning, facilitating, supporting or engaging in serious criminal activity; any submissions received from the public under clause 9 and any other matters the Attorney-General considers relevant.

11—Notice of declaration

The Attorney-General must publish notice of the declaration in the Gazette and in a newspaper circulating throughout the State as soon as practicable after making the declaration.

12—Revocation of declaration

The Attorney-General may revoke a declaration at any time and if so, must publish notice of the revocation in the Gazette and in a newspaper circulating throughout the State as soon as practicable after making the revocation.

13—Disclosure of reasons and criminal intelligence

This clause provides that the Attorney-General is not required to provide any grounds or reasons for a declaration or decision under this Part (other than as may be required for the purposes of a review under Part 6). It also requires that the information that has been provided to the Attorney-General for the purposes of this Part that has been classified as criminal intelligence by the Commissioner, must not be disclosed to any person (except a person conducting a review under Part 6 or a person authorised by the Commissioner).

Part 3—Control orders

14—Court may make control order

This clause provides that the Court must, following an 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. The Court may make a control order against a defendant if satisfied that the defendant has been a member of a declared organisation or engages or has engaged in serious criminal activity and regularly associates with members of a declared organisation. The Court may also make a control order against a defendant if satisfied that the defendant engages in or has engaged in serious criminal activity and regularly associates with other persons who engage, or have engaged in serious criminal activity. A control order may be issued on an application made without notice to any person. The grounds of an application for a control order must be verified by affidavit. In considering an application for a control order under this clause, or determining the terms of an order, the Court must consider whether the defendant's behaviour or previous behaviour suggests that there is a risk the defendant may engage in serious criminal activity; the extent an order may help prevent a defendant from engaging in serious criminal activity; the prior record of the defendant and any associates of the defendant; any legitimate reasons a defendant may have for associating with a particular person, and any other matters the Court thinks relevant.

A control order may prohibit the defendant from associating or communicating with specified persons or class of persons, being in or near a specified premises or type of premises or possessing certain articles. A control order in respect of a person who is a member of a declared organisation must prohibit the person from associating with other members of declared organisations and from possessing a dangerous article or prohibited weapon within the meaning of the Summary Offences Act 1953 (except as specified in the order). On making a control order, the Court may also make any ancillary or consequential orders it thinks fit, including, in the case of an order that prohibits possession of an article, orders providing for the confiscation and disposal of such an article or authorising a police officer to enter any premises in which the article is suspected to be and to search and take possession of it.

15—Form of control order

This clause sets out the requirements for a control order. It must be directed at the person specified as the defendant in the application and set out the terms of the order and the provision of this measure under which it has been made. Except in the case of information that is criminal intelligence, the order must also include a statement of the grounds on which the order has been issued and an explanation of the right of objection in clause 17. A copy of the affidavit verifying the grounds on which the application was made must be attached to the control order unless this would cause criminal intelligence to be disclosed in breach of clause 21. In this case, the affidavit may be edited to remove the criminal intelligence information.

16—Service

This clause sets out the requirements for service of the control order, which will not be binding until service has been so effected. The control order must be served on the defendant personally unless the person serving the order has reasonable cause to believe that the defendant is present at a particular premises, but is unable to gain access to him or her, in which case the control order may be served by leaving it at the premises with someone over the age of 16 years or if no such person is accessible, then by fixing it to the premises at a prominent place or near the entrance. The clause provides that a police officer who has reasonable cause to suspect that a control order is required to be served on a person, has the power to require that person to give the officer his or her personal details and require the person to remain at a particular place for a maximum of 2 hours in order to effect service of the order. If the person refuses or fails to comply with the police officer, the officer may arrest and detain the person without a warrant for the maximum period of 2 hours in order to effect service.

17—Right of objection

This clause provides a person on whom a control order has been served with the right to lodge a notice of objection with the Court within 14 days (or such longer period as the Court may allow) of being served with the order. The notice must state the grounds of the objection in detail and a copy of the notice must be served on the Commissioner at least 7 days before the day appointed for hearing the objection.

18—Procedure on hearing of notice of objection

The Court must consider whether there were sufficient grounds for making the control order in light of the evidence presented by the Commissioner and the objector. The Court may, on hearing the notice of objection confirm, vary or revoke the control order and make any other orders that the Court could have made on the making of the control order. If the defendant is a member of a declared organisation, and the Court is satisfied there is a good reason why he or she should be allowed to associate with a particular member of a declared organisation, the Court may vary the order to specify that the defendant is not prohibited from associating with that member, subject to any conditions that the Court thinks fit.

19—Appeals to Supreme Court

Either the Commissioner or the objector may appeal against a decision of the Court on a notice of objection to the Supreme Court. In regards to an appeal on a question of law, the appeal lies as of right, but only with the permission of the Supreme Court in regards to a question of fact. The procedures and timing of the appeal are to be in accordance with the rules of the Supreme Court. The operation of a control order is not affected by the commencement of an appeal under this clause. On appeal, the Supreme Court may confirm, vary or reverse the decision subject to appeal and make any other consequential or ancillary orders.

20—Variation or revocation of control order

This clause provides that the Court may vary or revoke a control order on application by the Commissioner or the defendant, provided the defendant has been granted permission by the Court. The Court must be satisfied there has been a substantial change in the relevant circumstances of the defendant before granting permission for a defendant to apply. Before varying or revoking a control order, the Court must allow all parties a reasonable opportunity to be heard on the matter and have regard to the same factors the Court must have regard to in considering whether or not to make a control order and its terms. An application for variation or revocation of a control order made by a defendant must be supported by oral evidence given on oath.

21—Criminal intelligence

The effect of this clause is to protect information classified by the Commissioner as criminal intelligence. Under this clause, information that is properly classified as criminal intelligence that is provided by the Commissioner to a court for the purposes of proceedings relating to the making, variation or revocation of a control order must not be disclosed to any person except the Attorney-General, a person conducting a review under Part 6, a court or a person authorised by the Commissioner. A court determining proceedings in relation to the making, variation or revocation of a control order must, on the application of the Commissioner, take steps to maintain the confidentiality of criminal intelligence including receiving evidence and hearing argument about the information in private in the absence of the parties and their representatives. The court may take evidence relating to the criminal intelligence by way of affidavit of a police officer who is at least the rank of superintendent.

22—Offence to contravene or fail to comply with control order

It is an offence for a person to contravene or fail to comply with a control order, with a maximum penalty of 5 years imprisonment. A person will only commit an offence if the person knew he or she was contravening or not complying with the order, or was reckless to that fact.

Part 4—Public safety orders

Division 1—Making of public safety orders

23—Senior police officer may make public safety order

A senior police officer may make a public safety order in respect of a person or a class of persons if he or she is satisfied that the presence of the person or persons at any premises or event, or within an area, poses a serious risk to public safety or security and such an order is appropriate in the circumstances. The clause sets out the sorts of things the senior police officer must consider before making a public safety order. These include whether the person or persons have behaved in a way that posed a serious risk to public safety or security in the past or have a history of engaging in serious criminal activity; whether the person or persons are or have been members of a declared organisation or subject to a control order or associate or have associated with such persons; if advocacy, protest, dissent or industrial action is the likely reason for the person or persons being present at a particular premises or event, or within a particular area, the public interest in maintaining the freedom to participate in such activities; whether the degree of risk justifies the terms of the order, having regard to any legitimate reason the person or persons may have for being present at a particular premises, event or location; the extent to which the making of the order will mitigate any risk to public safety or security; whether there are other measures reasonably available to mitigate the risk; and any other matters the police officer thinks fit. A public safety order may prohibit a person or a specified class of persons from entering or being on specified premises or attending a particular event or entering or being in a particular area.

If a public safety order prohibits attendance at a specified event, the order may include associated events or activities that occur on the same day as the principal event or as part of the principal event. The order must also define the area or areas in which the event takes place and set out when the event is taken to start and finish for the purposes of the order.

Despite any other provision of this clause, a public safety order must not be made by a senior police officer that would prohibit a person or class of persons from being present at any premises, event or within an area if those persons are members of an organisation formed for, or primarily formed for, non violent advocacy, protests, dissent or industrial action and the officer believes that that is the likely reason for those persons to be present at the premises or event or area.

Subject to clause 25, a public safety order operates for the period specified in the order. Although a public safety order may prohibit a person from entering or being on premises, whether or not the person has any legal or equitable interest in them, an order must not prohibit a person from entering or being in premises that are the person's principal place of residence. For the purposes of this clause a serious risk to public safety or security is where there is a serious risk that the presence of the person at particular premises, event or area might result in the death of, or serious physical harm to, a person or serious damage to property.

24—Variation and revocation of public safety order

A senior police officer may vary or revoke a public safety order at any time and the order must be revoked if the Commissioner is satisfied that the grounds for making the order no longer exist.

25—Certain variations and orders must be authorised by Court

This clause provides that a senior police officer must not make a public safety order in certain circumstances without first obtaining an authorisation order from the Court. These circumstances are where the public safety order is to operate for more than 72 hours or, in the case of an order that relates to a particular event that goes for longer than 72 hours, the order is for longer than the total duration of the event. Nor can a senior police officer vary an order so that it operates longer than 72 hours, or in the case of an order that relates to a particular event that goes for longer than 72 hours, so that it operates for longer than the total duration of the event, without an authorisation order of the Court. The Court is also required to authorise a public safety order that relates to a person who has been subject to another public safety order in the immediately preceding 72 hours (unless the person is a member of a declared organisation). The Court may make an authorisation order on application by a senior police officer without notice to any person. The grounds of an application for an authorisation order must be verified by affidavit.

The clause also sets out the manner in which an application for an authorisation order may be dealt with and made by a Magistrate by telephone. The Magistrate must be satisfied that there is sufficient urgency to justify dealing with the matter by oral questioning of the applicant and any witnesses by telephone, without the personal attendance of the applicant. If the Magistrate is not so satisfied, he or she may adjourn the hearing of the application to another time and place. If the Magistrate is satisfied that it is appropriate to deal with the application without requiring personal attendance, the applicant must inform the Magistrate of the grounds for the proposed order or variation. If satisfied that it is appropriate for the proposed variation or order to be made by the applicant, the Magistrate must inform the applicant of the facts that he or she thinks justify the making of the variation or order and require the applicant to undertake to verify these by affidavit. If the applicant gives such an undertaking, the Magistrate may then make the authorisation order and must note on the order the facts that justify the making of the variation or order and informing the applicant of the terms of the order. A copy must be then forwarded to the applicant as soon as practicable. The affidavit required to verify the facts relied on by the Magistrate must also be forwarded to the Magistrate as soon as practicable by the applicant. A copy of the order and the attached affidavit must be filed by the Magistrate in the Court. An authorisation order must specify the maximum period for which the public safety order may operate.

26—Right of objection

If a public safety order (as made or varied) will operate for more than 7 days, a person bound by the order may lodge a notice of objection with the Court. The notice must be lodged before the end of the period the order operates or within 14 days of the date the order became binding on the person, which ever first occurs. The notice of objection must set out the grounds of objection in detail and a copy of the notice must be served by the objector on the Commissioner at least 2 days before the day appointed for the hearing.

27—Procedure on hearing of notice of objection

The Court must, when determining a notice of objection, consider whether there were sufficient grounds for the making of the public safety order, any variations to the order and any relevant authorisation order, in light of the evidence presented by the Commissioner and the objector. The Court may then confirm, vary, or rescind the public safety order and make any other consequential or ancillary orders.

28—Appeals to Supreme Court

This clause provides that the Commissioner may appeal to the Supreme Court against a decision of the Court on an application under clause 25 (application for an authorisation order). In addition, either the Commissioner or an objector may appeal to the Supreme Court against a decision of the Court on a notice of objection. In regards to an appeal on a question of law, the appeal lies as of right, but only with the permission of the Supreme Court in regards to a question of fact. The procedures and timing of the appeal are to be in accordance with the rules of the Supreme Court. The operation of a public safety order is not affected by the commencement of an appeal against a decision of the Court on a notice of objection. On appeal, the Supreme Court may confirm, vary or reverse the decision under appeal and make consequential or ancillary orders.

29—Disclosure of reasons and criminal intelligence

Subject to clause 30, this clause provides that if a senior police officer decides to make, vary or revoke a public safety order, the officer is not required to provide any grounds or reasons for the decision to a person affected (but is required to provide grounds or reasons to a person conducting a review under Part 6 at the request of the reviewer). If a public safety order has been made, varied or revoked due to information that is properly classified by the Commissioner as criminal intelligence, that information must not be disclosed to any person other than the Attorney-General, a person conducting a review under Part 6, a court or a person authorised by the Commissioner if, at the time at which the question of disclosure is to be determined, the information is properly classified by the Commissioner as criminal intelligence (regardless of whether or not the information was classified as such at the time the public safety order was made, varied or revoked).

Under subclause (3), no information properly classified as criminal intelligence by the Commissioner that is provided to a court by a senior police officer for the purposes of proceedings relating to the making or variation of a public safety order or the making of an authorisation order, may be disclosed to any person except the Attorney-General, a person conducting a review under Part 6, a court or a person authorised by the Commissioner.

In any proceedings relating to the making or variation of a public safety order or the making of an authorisation order, the court must, on the application of the Commissioner, take steps to maintain the confidentiality of the criminal intelligence including receiving evidence and hearing argument about the information in private in the absence of the parties and their representatives. The court may take evidence relating to the criminal intelligence by way of affidavit of a police officer who is at least the rank of superintendent.

Division 2—Service and notification

30—Service and notification

If a public safety order is made or varied by a senior police officer, the officer must ensure that a copy of the order so made or varied is served personally on each person to whom the order relates along with notification that is in accordance with this clause. The notification that must accompany the order must be in writing and must specify the date on which the order was made or varied. If the order is one to which there is a right of objection under clause 26, the notification must also include a statement of the grounds on which the public safety order was made or varied or the grounds on which any authorisation order was made (unless this would contravene clause 29). The order must also include an explanation of the right of objection under clause 26.

The clause also provides that if a police officer has reasonable cause to suspect that a public safety order and notification are required to be served on a person, the officer may require that person to give his or her personal details and may require the person to remain at a particular place for a maximum of 2 hours in order to effect service of the order and notification. If the person refuses or fails to comply with the police officer, the officer may arrest and detain the person without a warrant for the maximum period of 2 hours in order to effect service. If a person serving an order and notification has reasonable cause to believe that the person is present at a particular premises, but is unable to gain access to him or her, the order and notification may be served by leaving it at the premises with someone over the age of 16 years or if no such person is accessible, then by fixing them to the premises at a prominent place or near the entrance. A public safety order (as made or varied) is not binding on a person to whom it relates unless the order and notification have been served on the person in accordance with this clause (but the order is then binding on that person regardless of whether or not any other person to whom the order relates has been so served).

31—Urgent orders

Despite the provisions of clause 30, if a police officer is satisfied that a public safety order should become binding on a person as a matter of urgency, the officer may verbally communicate the contents of an order to a person to whom it relates and advise the person of the place at which he or she may get a written copy of the order and notification in accordance with this clause. The person will then be bound by the order. The police officer who verbally communicates the order to the person must ensure that a copy of the order and the notification that would ordinarily accompany such an order if served on a person in accordance with clause 30, is available for collection by the person at the place stated on the next business day following the day on which the order was communicated to the person.

Division 3—Enforcement of orders and evidentiary provisions

32—Offence to contravene or fail to comply with public safety order

This clause provides that it is an offence to contravene or fail to comply with a public safety order. The person must have been aware that the act or omission would be a contravention of, or failure to comply with, the order or must have been reckless as to that fact. There is a maximum penalty of 5 years imprisonment. The clause also provides that it is a defence to a prosecution of a breach of an order that prohibits a person from entering or being in a particular area if the person can show he or she had a reasonable excuse for entering or being there.

33—Power to search premises and vehicles

This clause provides the police with the power to search certain premises to which a public safety order relates if there are reasonable grounds to suspect a person to whom the order relates is present in the premises. Similarly, the police may also stop and search a vehicle or anything in a vehicle if an officer suspects on reasonable grounds that a person in the vehicle is a person to whom a public safety order relates and the vehicle is approaching, is in, or has just left any premises, event or area specified in a public safety order. The police officer may detain a vehicle or person in a vehicle as long as is reasonably necessary to conduct the search. It is an offence for a person to fail to comply with a requirement of a police officer made for the purposes of this clause, with a maximum penalty of 5 years imprisonment.

34—Evidentiary

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

Part 5—Offences

35—Criminal associations

This clause provides that it is an offence for a person to associate with a person who is a member of a declared organisation or the subject of a control order on 6 or more occasions in a 12 month period. There is a penalty of 5 years imprisonment for this offence. The person only commits an offence if on each occasion on which it is alleged that the person associated with another, he or she knew that the person was a member of a declared organisation or the subject of a control order, or was reckless as to that fact.

It is also an offence for a person who has a criminal conviction of a prescribed kind to associate with another person who also has a prescribed criminal conviction on at least 6 or more occasions in a 12 month period. The person only commits an offence if on each occasion on which it is alleged that the person associated with another, he or she knew that the other had the relevant criminal conviction or was reckless as to that fact. There is a maximum penalty of 5 years imprisonment.

A person may be guilty of either of these offences in relation to associations with the same or different people. For the purposes of this offence, a person may associate with another by letter, telephone, fax, email or other electronic means.

Certain types of associations are disregarded for the purposes of this clause (unless the prosecution proves that the association was not reasonable in the circumstances). For example, associations between close family members (including spouse, domestic partner, parent, grandparent, child, or brother or sister), or those occurring in the course of undertaking a lawful occupation, business or profession, while attending a prescribed course of education or training or a session of rehabilitation, counselling or therapy of a prescribed kind or while in lawful custody or complying with a court order. The regulations may also prescribe types of associations for the purposes of this clause. In addition, a court hearing a charge of an offence against this clause may determine to disregard an association if the defendant proves he or she had a reasonable excuse (unless the defendant was, at the time of the association, a member of a declared organisation, subject to a control order or had a prescribed criminal conviction).

The clause makes it clear that it is not necessary to prove that the defendant associated with another person for any particular purpose or that an association would have led to the commission of any offence. This clause also gives a police officer who has reasonable cause to suspect that 2 people are or have been associating with each other and that at least 1 of them is a member of a declared organisation, or the subject of a control order or has a prescribed criminal conviction, to state their personal details.

36—Provision of personal details

A police officer may require a person to provide proof of his or her personal details required to be provided under this measure if the police officer has reasonable cause to believe they are false. It is an offence to fail to provide personal details or fail to provide proof as required under this measure, or to provide details or evidence that is false. There is a penalty of 5 years imprisonment. A police officer making a request for personal details under this measure must produce his or her police identification or state orally or in writing his or her surname, rank, and identification number, if requested by the person.

Part 6—Reviews and expiry of Act

37—Annual review and report as to exercise of powers

This clause requires the Attorney-General to appoint a retired judicial officer to conduct an annual review of the exercise of powers under the measure, to be presented to the Attorney-General by 30 September each year and laid before both Houses of Parliament. The review must include a consideration of whether the powers have been exercised appropriately having regard to the objects of the measure. The Attorney-General and the Commissioner must ensure that the reviewer is provided with such information as he or she requires to conduct the review. Any information that has been classified by the Commissioner as criminal intelligence must be kept confidential.

38—Review of operation of Act

This clause provides that the Attorney-General must, as soon as practicable after the fifth anniversary of the commencement of the clause, conduct a review of the operation and effectiveness of the measure (the report of which must be tabled in both Houses of Parliament). Again, any information that has been classified by the Commissioner as criminal intelligence must be kept confidential.

39—Expiry of Act

The measure will expire 10 years after commencement.

Part 7—Miscellaneous

40—Immunity from liability

This clause provides that no civil or criminal liability attaches to the Attorney-General, the Commissioner, a police officer or any other person exercising powers and functions under this measure, or to the Crown, in relation to an act or omission in good faith in the exercise or discharge of a power, function or duty conferred or imposed by or under this measure.

41—Protection from proceedings

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

42—Prosecution of offence as a summary offence

Under this clause, an indictable offence against this measure may be charged on complaint and be prosecuted and dealt with by the Magistrates Court as a summary offence. However, if the Magistrates Court determines that a person found guilty of such an offence should be sentenced to more than 2 years imprisonment, the Court must commit the person to the District Court for sentence. Even though a person may have been dealt with summarily, the person will still be taken to be guilty of an indictable offence for the purposes of any Act or law.

43—Regulations

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

Schedule 1—Related amendments

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Bail Act 1985

2—Amendment of section 10A—Presumption against bail in certain cases

This clause amends section 10A of the Bail Act 1985 by substituting a new subsection (2). This has the effect of extending the definition of prescribed applicant in relation to whom there will be a presumption against the grant of bail. The presumption against bail will now extend to an applicant taken into custody in relation to an offence of contravening or failing to comply with a control order or public safety order; and to an applicant taken into custody in relation to an offence against section 172 (Blackmail), section 248 (Threats or reprisals relating to duties or functions in judicial proceedings) or section 250 (Threats or reprisals against public officers) of the Criminal Law Consolidation Act 1935.

Part 3—Amendment of Criminal Law Consolidation Act 1935

3—Substitution of section 248

This clause replaces the current section 248 with the following:

248—Threats or reprisals relating to persons involved in criminal investigations or judicial proceedings

The new clause 248 provides that a person who stalks another or causes or procures, or threatens or attempts to cause or procure, any physical injury to any person or property, with the intention of inducing a person who may be involved in a criminal investigation or judicial proceedings to act or not act in a particular way that might influence the outcome of the investigation or proceedings is guilty of an offence. The maximum penalty is 7 years imprisonment. A person will also be guilty of an offence if the person stalks another person, or causes or procures, or threatens or attempts to cause or procure, any physical injury to a person or property, on account of anything said or done by a person involved in a criminal investigation or judicial proceedings in good faith in the conduct of the investigation or proceedings. The maximum penalty is 7 years imprisonment.

The clause sets out the sorts of conduct that may constitute stalking (similar to those set out in the offence of stalking in section 19AA of the Criminal Law Consolidation Act 1935). This is conduct that could reasonably be expected to arouse the other person's apprehension or fear and includes following the other person, loitering outside the person's home or other place he or she frequents; entering or interfering with the other person's property; giving or sending offensive material or leaving it where it will be found or brought to the other person's attention; publishing or transmitting offensive material by the internet or other form of electronic communication in such a way that it will be found or brought to the attention of the other person; communicating with the other person or to others about the person by mail, telephone, fax etc; keeping the other person under surveillance, or acting in some other way.

4—Substitution of section 250

This clause replaces section 250 with a new clause in the following terms:

250—Threats or reprisals against public officers

The new clause is similar to the original clause, but includes stalking, such that it is an offence for a person to stalk another person, or cause or procure, or threaten or attempt to cause or procure, any physical injury to the person or property with the intention of influencing the way in which a public officer discharges or performs his or her official duties or functions. There is a maximum penalty of 7 years imprisonment. It is also an offence for a person to stalk another person, or cause or procure, or threaten or attempt to cause or procure, any physical injury to a person or property, on account of anything said or done by a public officer in good faith in the discharge or performance of his or her official duties or functions. This offence carries a maximum penalty of 7 years imprisonment.

The clause sets out the sorts of conduct that may constitute stalking (similar to those set out in the offence of stalking in section 19AA of the Criminal Law Consolidation Act 1935). This is conduct that could reasonably be expected to arouse the other person's apprehension or fear and includes following the other person; loitering outside the person's home or other place he or she frequents; entering or interfering with the other person's property; giving or sending offensive material or leaving it where it will be found or brought to the other person's attention; publishing or transmitting offensive material by the internet or other form of electronic communication in such a way that it will be found or brought to the attention of the other person; communicating with the other person or to others about the person by mail, telephone, fax etc; keeping the other person under surveillance, or acting in some other way.

Part 4—Amendment of Freedom of Information Act 1991

5—Amendment of Schedule 1—Exempt documents

This clause amends Schedule 1 of the Freedom of Information Act 1991 to extend the list of exempt documents to include a document created by the South Australian Police that contains information classified by the Commissioner of Police as criminal intelligence in accordance with the provisions of any other Act.

Part 5—Amendment of Summary Offences Act 1953

6—Repeal of section 13

This clause repeals the offence of consorting.

7—Amendment of section 74BB—Fortification removal order

This clause amends section 74BB to extend the premises in relation to which a Court may issue a fortification removal order. This now includes premises owned by a declared organisation or a member of a declared organisation, or that are occupied or habitually used as a place of resort by members of a declared organisation.

Debate adjourned on motion of Hon. D.W. Ridgway.

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