Part 3 Control of members of declared organisations
Division 1 Interim control orders
14 Court may make interim control order
(1) The Court may, on application by the Commissioner, make an interim control order relating to one or more persons specified in the application pending the hearing and final determination of an application for a control order confirming (or confirming with variations) the interim control order.(2) The grounds of the application must be supported by an affidavit from the Commissioner, or affidavits from one or more other senior police officers, verifying the contents of the application.(3) The Court is to make an interim control order in relation to a person if it is satisfied that the application and any further information supplied by the Commissioner satisfy the requirements under section 19 (1) for making a control order in relation to the person.(4) The interim control order may be made in the absence of, and without notice to, the person in relation to whom the order is to be made (or the person’s representatives).(5) If the Court makes an interim control order, it must fix the date on which, and the time at which, the hearing of the application for a control order in relation to the person is to be heard.
15 Date of effect of interim control order
An interim control order takes effect on the day on which notice of the order is served personally on the person to whom it relates under section 16.
16 Notice of making of interim control order
(1) The Commissioner must, within 28 days after the making of an interim control order, serve notice of the order personally on the person to whom it relates.(2) The notice must:(a) subject to subsection (3), include a statement of the grounds on which the order was made, and(b) set out an explanation of the effect of sections 26 and 27, and(c) advise the person of the names of any other persons known by the Commissioner to be members of the same declared organisation of which that person is a member and to whom an interim control order or control order relates, and(d) set out an explanation of:(i) the right to object to the making of the order at the hearing of the application for the control order, and(ii) the procedure to be followed in notifying the Court before the hearing of the grounds of objection (the notice of objection) and of the need to verify the grounds by affidavit, and(e) state the date on which, and the time at which, the hearing of the application for the control order is to be heard.(3) A statement of the grounds on which an interim control order has been made must not contain information that must not be disclosed in accordance with Part 3B.(4) A copy of the affidavit verifying the grounds on which the application was made must be attached to the interim control order unless disclosure of information included in the affidavit would be in breach of Part 3B.(5) If disclosure of information included in the affidavit would be in breach of Part 3B, an edited copy of the affidavit, from which the information that cannot be disclosed has been removed or erased, may be attached to the notice of the interim control order.(6) A police officer who has reasonable cause to suspect that a person is a person on whom notice of the making of an interim control order is required to be served under this section may:(a) request the person to disclose his or her identity, and(b) request the person to remain at a particular place for such period (not exceeding 2 hours) as is reasonably necessary to serve the notice.Note. It is an offence for a person to fail or refuse without reasonable excuse to comply with a request to disclose his or her identity or to give false or misleading information about his or her identity—see section 35A.(7) If the person refuses or fails to comply with a request under subsection (6) (b), the police officer may detain the person at that place for such period (not exceeding 2 hours) as is reasonably necessary to serve the notice.
16A Service of notice of interim control order
(1) If notice of an interim control order cannot practicably be served on the person to whom it relates in accordance with section 16 (1), the Court may, by order, direct that:(a) service of the notice of the order be postponed for a period (not exceeding 28 days) after the period within which it is required to be served under that subsection as specified by the Court, or(b) instead of personal service, such steps be taken as are specified by the Court in the order for the purpose of bringing the interim control order to the attention of the person.(2) The Court must not make an order under subsection (1) unless it is satisfied that the Commissioner has taken all reasonable steps possible to personally serve the person within the period and as required by section 16.(2A) An order may be made under subsection (1) whether or not the 28-day period referred to in section 16 (1) has expired.(3) An order of the Court under subsection (1) (b) may direct that the notice of the interim control order be taken to have been served on the person to whom it relates on the happening of a specified event or on the expiry of a specified time.(4) If the Court is satisfied that steps specified in an order under subsection (1) (b) have not (despite the best endeavours of the Commissioner) brought an interim control order to the attention of the person to whom it relates, the Court may specify that the notice of the interim control order be published in the Gazette, a daily newspaper circulating generally in the State or by some other form of public notification.(5) Service in accordance with an order of the Court under this section is taken to constitute personal service for the purposes of sections 15 and 16 (1).
17 Interim control order ceases when final control order made or served
(1) An interim control order remains in force until:(a) it is revoked, or(b) it ceases to have effect under subsection (2), or(c) the application for a control order confirming the interim control order is withdrawn or dismissed,whichever first occurs.(2) If a control order is made confirming an interim control order (whether with or without variation), the interim control order ceases to have effect:(a) if the person to whom it relates is present in court—when the control order is made, or(b) in any other case—when the person is served personally with a copy of the control order.
18 Expedited hearing in cases of hardship
(1) A person on whom notice of the making of an interim control order is served under this Division may request the Court to hear the application for the control order confirming the interim control order at an earlier date determined by the Court than that specified in the notice.(2) The Court must hear the application for the control order as expeditiously as possible if satisfied by the person concerned that, in the special circumstances of the case, he or she will suffer undue hardship if the hearing of the application for the control order is delayed.
19 Court may make control order
(1) The Court may make a control order in relation to a person on whom notice of an interim control order has been served under Division 1 if the Court is satisfied that:(a) the person:(i) is a member of a particular declared organisation, or(ii) is or purports to be a former member of a particular declared organisation but has an on-going involvement with the organisation and its activities, and(b) sufficient grounds exist for making the control order.(2) The Court may:(a) make a control order confirming or confirming with variations the interim control order, or(b) revoke the interim control order.(3) In considering whether or not there are sufficient grounds to make the control order in relation to the person, the Court is to take into account:(a) the affidavit from the Commissioner, or affidavits from one or more other senior police officers, that verified the contents of the application for the interim control order concerned, and(b) the affidavit provided by the person with the notice of objection referred to in section 16, and(c) any other information provided by the Commissioner or person to whom the order relates at the hearing.(4) The control order may be made whether or not the person concerned is present at the hearing of the application.(5) If the person concerned is not present at the hearing, the Commissioner is to cause a copy of the control order to be served personally on the person.(6) The Court may, on making a control order in relation to a person, make any consequential or ancillary orders it thinks fit.(7) Without limiting subsection (6), an order may be made, if in the opinion of the Court the circumstances of the case require:(a) if the person satisfies the Court that there is a good reason why he or she should be allowed to associate with a particular controlled member—exempting the person from the operation of section 26 to the extent, and subject to the conditions, specified by the Court, or(b) exempting the person from the operation of section 27 for a period specified by the Court to enable the person to organise his or her affairs.(8) For the purposes of determining whether subsection (1) (a) (ii) applies to a person, the Court may take into account whether the person regularly associates with members of the declared organisation without reasonable cause and the extent to which the conduct of the person demonstrates that the person has genuinely dissociated himself or herself from the organisation.
20 Person to whom order relates may appear at the hearing
The person to whom the control order relates may appear at the hearing of the application and make submissions in relation to the application.
(1) A control order must:(a) specify the person to whom it relates, and(b) subject to subsection (2)—include a statement of the grounds on which the order has been made, and(c) set out an explanation of the right of appeal under section 24.(2) A statement of the grounds on which a control order has been made must not contain information that must not be disclosed in accordance with Part 3B.(3) A copy of the affidavit verifying the grounds on which the order was made must be attached to the control order unless disclosure of information included in the affidavit would be in breach of Part 3B.(4) If disclosure of information included in the affidavit would be in breach of Part 3B, an edited copy of the affidavit, from which the information that cannot be disclosed has been removed or erased, may be attached to the control order.
22 Date of effect of control order
A control order takes effect:(a) if the person to whom it relates is present in court—when the control order is made, or(b) in any other case—when the person is served personally with a copy of the control order.
A control order remains in force until it is revoked.
(1) The Commissioner or the controlled member may appeal to the Court of Appeal against a decision of the Court in relation to the making of a control order.(2) An appeal lies as of right on a question of law and with leave on a question of fact.(3) An appeal as of right must be made within 28 days after the date on which the decision was made unless the Court of Appeal gives leave for it to be made after that time.(4) The making of an appeal under this section does not affect the operation of the control order to which the appeal relates.(5) On an appeal, the Court of Appeal may:(a) confirm, vary or reverse the decision the subject of the appeal, and(b) make any consequential or ancillary order.
25 Variation or revocation of control order
(1) The Court may at any time vary or revoke a control order on application:(a) by the Commissioner, or(b) by the person to whom it relates.(2) An application for variation or revocation of a control order may only be made by the person to whom the order relates with the leave of the Court and leave is only to be granted if the Court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied.(3) The Court must, before varying or revoking a control order under this section:(a) allow all parties a reasonable opportunity to be heard on the matter, and(b) have regard to the same factors that the Court is required to have regard to in considering whether or not to make a control order and in considering the terms of a control order.(4) If an application for the variation or revocation of a control order is made by the person to whom the order relates, the application must be supported by oral evidence given on oath.(5) The Court is to give notice of the variation or revocation of a control order to the Commissioner (if the Commissioner is not present when the order is varied or revoked) and to the Attorney General.
Division 3 Consequences of making of interim control orders and control orders
26 Association between members of declared organisations subject to interim control order or control order
(1) A controlled member of a declared organisation who associates with another controlled member of the declared organisation is guilty of an offence.Maximum penalty: Imprisonment for 2 years.
(1A) A controlled member of a declared organisation who, at any time within a period of 3 months, associates with another controlled member of the declared organisation on 3 or more occasions is guilty of an offence.Maximum penalty: Imprisonment for 3 years.
(1B) A controlled member of a declared organisation who associates with another controlled member of the declared organisation after being convicted of an offence under this section is guilty of an offence.Maximum penalty: Imprisonment for 5 years.
(2) A person may be guilty of an offence under this section in respect of associations with the same person or with different people.(3) It is a defence to a prosecution for an offence under this section if the defendant establishes that he or she did not know, and could not reasonably be expected to have known, that the other person with whom he or she associated was a controlled member of the declared organisation.(4) It is a defence to a prosecution for an offence under this section if the association is in accordance with an exemption under section 19 (7) (a).(5) The following forms of associations are to be disregarded for the purposes of this section in its application to a defendant to whom an interim control order relates if the defendant proves that the association was reasonable in the circumstances:(a) associations between close family members,(b) associations occurring in the course of a lawful occupation, business or profession,(c) associations occurring at a course of training or education of a kind prescribed by the regulations between persons enrolled in the course,(d) associations occurring at a rehabilitation, counselling or therapy session of a kind prescribed by the regulations,(e) associations occurring in lawful custody or in the course of complying with a court order,(f) other associations of a kind prescribed by the regulations.(6) For the avoidance of doubt, in proceedings for an offence against this section, it is not necessary for the prosecution to prove that the defendant associated with another person for any particular purpose or that the association would have led to the commission of any offence.(7) For the purposes of this section, a control order made in relation to a person is conclusive evidence that the person is a controlled member of the particular declared organisation to which the control order relates and of the terms of the order (including any exemptions from the operation of this section under section 19 (7) (a)).(7A) A police officer who has reasonable cause to suspect that a person is a controlled member of a declared organisation who is associating with another controlled member of the declared organisation may request the person to disclose his or her identity.Note. It is an offence for a person to fail or refuse without reasonable excuse to comply with a request to disclose his or her identity or to give false or misleading information about his or her identity—see section 35A.(8) For the purposes of this section, a person is a close family member of another person if:(a) the person is a spouse or former spouse of the other or is, or has been, in a domestic relationship with the other, or(b) the person is a parent or grandparent of the other (whether by blood or by marriage), or(c) the person is a brother or sister of the other (whether by blood or by marriage), or(d) the person is, or has been, a guardian or carer of the other.(9) In this section:domestic relationship has the same meaning as in the Property (Relationships) Act 1984.
spouse—a person is the spouse of another if they are legally married.
26A Recruiting persons to become member of declared organisation
(1) A controlled member of a declared organisation who recruits another person to become a member of the organisation is guilty of an offence.Maximum penalty: Imprisonment for 5 years.
(2) In this section:recruit includes counsel, procure, solicit, incite or induce.
27 Prohibition on carrying on of certain activities when interim control order or control order takes effect
(1) Any authorisation to carry on a prescribed activity that is held by a controlled member of a declared organisation is automatically suspended on the taking effect of an interim control order in relation to the person.(2) The authorisation is suspended until the interim control order is confirmed (or confirmed with variations) by a control order or is revoked.(3) On confirmation of the interim control order by a control order, the authorisation is revoked.(4) A controlled member of a declared organisation is prohibited from applying for any authorisation to carry on a prescribed activity so long as an interim control order or control order in relation to the member is in force.(5) A suspension or revocation of an authorisation in accordance with this section is effected despite any other Act or any law, award or industrial or other agreement affecting the employment of the person holding the authorisation, and neither the Crown nor the authority that issues an authorisation incurs any liability because of such a suspension or revocation.(6) In this section:authorisation includes the licensing, registration, approval, certification or any other form of authorisation of a person required by or under legislation for the carrying on of an occupation or activity.
occupation means an occupation, trade, profession or calling of any kind that may only be carried on by a person holding an authorisation.
prescribed activity means the following:
(a) operating a casino within the meaning of the Casino Control Act 1992, or being a special employee within the meaning of Part 4 of that Act,(b) carrying on a security activity within the meaning of the Security Industry Act 1997,(c) carrying on the business of a pawnbroker within the meaning of the Pawnbrokers and Second-hand Dealers Act 1996,(d) carrying on business as a commercial agent or private inquiry agent within the meaning of the Commercial Agents and Private Inquiry Agents Act 2004,(e) possessing or using a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996 or carrying on business as a firearms dealer within the meaning of that Act,(f) operating a tow truck within the meaning of the Tow Truck Industry Act 1998,(g) carrying on business as a dealer within the meaning of the Motor Dealers Act 1974,(h) carrying on business as a repairer within the meaning of the Motor Vehicle Repairs Act 1980,(i) selling or supplying liquor within the meaning of the Liquor Act 2007,(j) carrying on the business of a bookmaker within the meaning of the Racing Administration Act 1998,(j1) carrying on a body art tattooing business or performing body art tattooing procedures within the meaning of the Tattoo Parlours Act 2012,(k) carrying out the activities of an owner, trainer, jockey, stablehand, bookmaker, bookmaker’s clerk or another person associated with racing who is required to be registered or licensed under the Thoroughbred Racing Act 1996,(l) carrying out the activities of an owner, trainer or other person associated with greyhound or harness racing who is required to be registered under the Greyhound Racing Act 2009 or the Harness Racing Act 2009,(m) any other activity prescribed by the regulations.