Serious and Organised Crime (Control) Act 2008

This Act may be cited as the Serious and Organised Crime (Control)

Act 2008.

In this Act, unless the contrary intention appears—

authorisation order means an order of the Court under section 25;

Commissioner means the Commissioner of

Police;

control order means a control order made by the

Court under Part

3 (but does not include an interim control order);

conviction means a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded;

corresponding control order means an order made under a provision of a law of another State or Territory that is prescribed by regulation for the purposes of this definition;

corresponding declaration means a declaration or order made under a provision of a law of another State or Territory that is prescribed by regulation for the purposes of this definition;

Court—

in Part

2,

Part

3 and Part

6, means the Supreme Court;

in Part

4, means the Magistrates Court;

criminal intelligence means 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;

declared organisation means an organisation subject to a declaration under

Part

2 or a registered corresponding declaration that is in force under Part 6;

interim control order means an interim control order made by the Court under section 22A;

member, in relation to an organisation, includes—

in the case of an organisation that is a body corporate—a director or an officer of the body corporate; and

in any case—

an associate member or prospective member (however described) of the organisation; and

a person who identifies himself or herself, in some way, as belonging to the organisation;

organisation means any incorporated body or unincorporated group (however structured), whether or not the body or group is based outside South Australia, consists of persons who are not ordinarily resident in South Australia or is part of a larger organisation;

personal details, in relation to a person, means—

the person's full name; and

the person's date of birth; and

the address of where the person is living; and

the address of where the person usually lives; and

the person's business address;

public safety order means an order made by a senior police officer under section 23;

respondent—

in Part

3, means the person to whom a control order or interim control order, or application for such an order, relates; and

in Part

6, means the organisation the subject of a corresponding declaration or the person the subject of a corresponding control order (as the case may be);

senior police officer means a police officer of or above the rank of inspector;

serious criminal activity means the commission of serious criminal offences;

serious criminal offences means—

indictable offences (other than indictable offences of a kind prescribed by regulation); or

summary offences of a kind prescribed by regulation;

or

offences under the law of another jurisdiction consisting of conduct that would, if engaged in in this State, be offences of a kind specified in paragraph (a) or (b).

The objects of this Act are—

to disrupt and restrict the activities of—

organisations involved in serious crime; and

the members and associates of such organisations; and

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

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.

Any question of fact to be decided by a court in proceedings under this Act is to be decided on the balance of probabilities.

This section does not apply in relation to proceedings for an offence against this Act.

In any proceedings under this Act before a court, the court—

must, on the application of the Commissioner, take steps to maintain the confidentiality of information properly classified by the

Commissioner as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and

may take evidence consisting of or relating to information so classified by the Commissioner by way of affidavit of a police officer of or above the rank of superintendent.

The duties imposed on a court by subsection (1) in relation to proceedings under this

Act apply to any court dealing (whether on an appeal under this, or another,

Act or otherwise) with information properly classified under this Act as criminal intelligence or with the question of whether information has been properly classified under this Act by the Commissioner as criminal intelligence.

It is the intention of the Parliament that this Act apply within the State and outside the State to the full extent of the extra‑territorial legislative capacity of the Parliament.

The Commissioner—

may not delegate the function of classifying information as criminal intelligence for the purposes of this Act except to a Deputy

Commissioner or Assistant Commissioner of Police; and

may not delegate any other function or power of the Commissioner under this Act except to a senior police officer.

The Commissioner may apply to the Court for a declaration under this Part in relation to an organisation.

The application must—

be in writing; and

identify the particular organisation in respect of which the declaration is sought; and

describe the nature of the organisation and any of its distinguishing characteristics; and

set out the grounds on which the declaration is sought;

and

set out the information supporting the grounds on which the declaration is sought; and

set out details of any previous application for a declaration in respect of the organisation and the outcome of that application;

and

be supported by at least 1 affidavit from a police officer, verifying the contents of the application.

The application may identify the organisation by specifying the name of the organisation or the name by which the organisation is commonly known or by providing other particulars identifying the organisation.

Subject to subsection (7), the Commissioner must make a copy of an application under this section, and any affidavit supporting the application, available for inspection by—

any person who satisfies the Commissioner that he or she is a representative of the organisation; and

any person who is alleged in an affidavit supporting the application to be a member or former member of the organisation;

and

any person who satisfies the Commissioner that he or she is a member or former member of the organisation or other person who may be directly affected (whether or not adversely) by the outcome of the application;

and

any other person whom the Court considers should be provided with an opportunity to inspect the application and supporting affidavits.

Nothing in subsection (6) authorises or requires the disclosure of information properly classified by the Commissioner as criminal intelligence.

If the Commissioner makes an application under section 9 in relation to an organisation, the

Commissioner must as soon as practicable publish a notice in the Gazette and a newspaper circulating generally throughout the State—

specifying that an application has been made for a declaration under this Part in respect of the organisation; and

specifying that there may be serious consequences for members of the organisation and other persons if the declaration is made; and

advising interested parties of their rights in relation to making or providing submissions to the Court at the hearing of the application;

and

specifying the manner in which interested parties may inspect or apply to inspect a copy of the application; and

specifying the date, time and place of the hearing.

In this section—

interested party, in relation to an application, means an organisation or person who would, under section 15, be entitled to make an oral submission or provide a written submission to the Court at the hearing of the application.

The Court may make a declaration on an application made under this

Part in relation to an organisation if satisfied that—

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

the organisation represents a risk to public safety and order in this State.

In considering whether or not to make a declaration, the Court may have regard to the following:

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

any convictions recorded against—

current or former members of the organisation; or

persons who associate, or have associated, with members of the organisation;

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;

information suggesting that members of an interstate or overseas

chapter or branch of the organisation (however described) associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity;

anything else the Court considers relevant.

A declaration may be made whether or not any of the persons who are entitled to make or provide submissions in relation to the application take advantage of that opportunity.

Members of an organisation may associate for the purposes of this section in any manner including merely by being members of the organisation.

The Court may, for the purposes of making the declaration, be satisfied that members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity—

whether all the members associate for that purpose or only some of the members; and

whether members associate for that purpose in relation to the same serious criminal activity or different serious criminal activity;

and

whether or not the members also associate for other purposes.

As soon as practicable after the making of a declaration under this

Part, the Commissioner must publish notice of the declaration in the Gazette and in a newspaper circulating generally throughout the State.

Unless the Court otherwise directs, the declaration is of no effect until notice of it is published under subsection (1).

A declaration made under this Part remains in force unless and until it is revoked in accordance with this Part.