5 Commissioner may apply for declaration
(1) The Commissioner may apply to the Court for a declaration that a particular organisation (the respondent) is a criminal organisation for the purposes of this Act.(2) The application must:(a) be in writing, and(b) identify the organisation, and(c) describe the nature of the organisation and any of its distinguishing characteristics, and(d) set out the grounds on which the declaration is sought, and(e) set out the information supporting the grounds on which the declaration is sought, and(f) set out details of any previous application for a declaration of the organisation and the outcome of that application, and(g) state that a response to the application may be filed under section 6.(3) The application must be accompanied by any affidavit the Commissioner intends to rely on at the hearing of the application.(4) For the purposes of subsection (2) (b), it is sufficient if the organisation is identified by specifying its name or the name by which it is commonly known or by providing other particulars about the organisation.(5) The application, with any accompanying affidavit, must:(a) be filed in the Court, and(b) on filing, have as the return date for the hearing fixed by the registrar of the Court a day within 35 days after the filing, and(c) after being filed, be served by the Commissioner on the respondent:(i) by personal service within 7 business days after the filing, or(ii) if personal service is not practicable, or if the respondent is an unincorporated association or group, by public notice within 10 days after the filing.(6) The Court may extend the return date under this section on such conditions the Court considers appropriate.
(1) The respondent may file a response to the application under this Part.(2) The response must set out the facts relied on by the respondent in response to the application.(3) The respondent must file the response at least 5 business days before the return date fixed by the registrar of the Court.(4) The response must be accompanied by any affidavit the respondent intends to rely on at the hearing of the application.
7 Court may make a declaration
(1) The Court may make a declaration that the respondent is a criminal organisation for the purposes of this Act if the Court is satisfied that:(a) the respondent is an organisation, and(b) members of the organisation in New South Wales associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and(c) the continued existence of the organisation is an unacceptable risk to the safety, welfare or order of the community in this State.(2) In considering whether or not to make a declaration, the Court must have regard to:(a) the following information before the Court:(i) information suggesting a link exists between the organisation and serious criminal activity in New South Wales,(ii) any conviction for current or former members of the organisation in New South Wales,(iii) information suggesting current or former members of the organisation in New South Wales have been, or are, involved in serious criminal activity, whether directly or indirectly and whether or not the involvement resulted in convictions,(iv) information suggesting 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(b) anything else the Court considers relevant.(3) A declaration may be made whether or not the respondent is present or makes submissions.(4) The Court may, for the purpose of making the declaration, be satisfied that members of an organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity:(a) whether all the members in New South Wales associate for that purpose or only some of the members, and(b) whether members in New South Wales associate for that purpose for the same serious criminal activities or different ones, and(c) whether or not the members in New South Wales also associate for other purposes.(5) For the purposes of subsection (4) (a), the Court may act on the basis of satisfaction that only some of the members in New South Wales associate for the purpose mentioned in the subsection only if the Court is satisfied that those members constitute a significant group within the organisation in New South Wales, either:(a) in terms of their numbers, or(b) in terms of their capacity to influence the organisation or its members in New South Wales.(6) A declared organisation is taken to include any organisation into which the members substantially restructure themselves with or without dissolving the organisation named in the declaration.
(1) As soon as reasonably practicable after a declaration is made under this Part, the Commissioner must publish notice of the declaration in the Gazette and in at least one newspaper circulating throughout the State.(2) The declaration is of no effect until it is published under subsection (1).
(1) A declaration under this Part remains in force for a period of 5 years after the day on which it is made, unless sooner revoked or unless renewed.(2) A change in the name or membership of a criminal organisation does not affect the declaration.
(1) The Court may revoke a declaration under this Part on an application under this section.(2) An application may be made by:(a) the Commissioner, at any time, or(b) the declared organisation or a member of the declared organisation, subject to this section.(3) An application must:(a) be in writing, and(b) set out the grounds on which the revocation is sought, and(c) set out the information supporting the grounds on which the revocation is sought.(4) The application must be accompanied by any affidavit the applicant intends to rely on at the hearing of the application.(5) The Commissioner is a party to any proceedings for an application by the declared organisation or a member of the declared organisation.(6) The applicant must serve a copy of the application, with any accompanying affidavit, on the other party to the proceedings as soon as reasonably practicable after the application is filed.(7) If the Commissioner is the applicant, service on the other party must be:(a) by personal service, or(b) if personal service is not practicable or the other party is an unincorporated association or group, by public notice.(8) The Court may revoke a declaration on the application of the declared organisation or a member of the declared organisation only if satisfied that there has been a substantial change in the nature or membership of the declared organisation to the extent that:(a) members of the organisation in New South Wales no longer associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and(b) the continued existence of the organisation no longer represents an unacceptable risk to the safety, welfare or order of the community in this State.(9) A declared organisation or a member of a declared organisation may not apply for the revocation of a declaration until at least 3 years after the declaration is made.(10) The total number of applications for revocation made by the declared organisation and all members of the declared organisation cannot be more than 2 during the first 5 years after the declaration is made.(11) As soon as reasonably practicable after the revocation or expiration of a declaration, the Commissioner must publish notice of the revocation or expiration in the Gazette and in at least one newspaper circulating throughout the State.
11 Stated reasons for making or revoking declaration
(1) The Court is to provide a written statement of reasons for any decision to make or revoke a declaration under this Part, or for refusing an application for a declaration or the revocation of a declaration.(2) This section does not authorise or require the disclosure of information if an obligation to maintain confidentiality exists (whether under Part 3B or under any other Act or law).
12 Renewal or extension of declarations
(1) A declaration under this Part may be renewed at any time before or after the declaration expires.(2) For that purpose, the provisions of this Act applying to an application for the making of a declaration apply as if reference to the making of the declaration were a reference to the renewal of the declaration.(3) It does not matter how often declarations are renewed.
(1) Section 24 applies to a decision of the Court under this Part in the same way it applies to a decision of the Court in relation to the making of a control order.(2) In that case, a reference to a controlled member is taken to be a reference to a declared organisation.