2016
2016
2017-04-01
act
government
publicspecial
act.reprint
act-1987-015
allinforce
2016-03-22
2016-03-22
0
2017-04-01
act-1987-015
2016
none
act-2016-016
b089e695-35cf-4789-bf1b-d1f603efc95d
35f00e9f-695d-4f34-b80c-f3901982ac23
Repeal:
This Act was repealed by sec 30C of the Interpretation Act 1987 No 15 with
effect from 1.4.2017.
An Act to amend certain Acts to make further
provision with respect to organised crime and public
safety.
1Name of
Act
This Act is the Criminal
Legislation Amendment (Organised Crime and Public Safety) Act
2016.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
Schedules 1–3
Schedule 4Amendment of Criminal Procedure Act 1986 No
209
[1]
[2]Schedule 1, Table
1
Insert after clause 21A:
21BLaw
Enforcement (Powers and Responsibilities) Act
2002
An offence under section 87ZA of the Law Enforcement (Powers and Responsibilities) Act
2002.
[3]
sch 4: Am 1987 No 15,
sec 30C.
Schedule 5Amendment of Law Enforcement (Powers and Responsibilities) Act
2002 No 103
[1]Part 6B
Insert after Part 6A:
Part 6BPublic safety
orders
Division 1Interpretation
87PDefinitions
In this Part:
long
duration public safety order—see section
87V.
public
event means a trade, cultural, social or sporting event that
is open to the public (including when entry into the event requires the
payment of a fee or other charge).
public
safety order—see section 87Q.
senior
police officer means a police officer of the rank of
Inspector or above (including the Commissioner).
Note—
By virtue of the Interpretation
Act 1987 (section 48 (2)) a person acting in an office
referred to above may exercise the functions of a senior police officer under
this Part.
87QWhat is a public safety
order
A public
safety order is an order made by a senior police officer
that prohibits a specified person (or persons belonging to a specified class
of persons) from:
(a)
attending a specified public event (including
entering, or being present at, premises being used in connection with the
public event), or
(b)
entering, or being present at, specified premises
or other specified area at any time during a specified
period.
Division 2Making, variation and
revocation of public safety orders
87RPower of senior police officer
to make public safety order
(1)
A senior police officer may make a public safety
order only if satisfied that:
(a)
the presence of the person (or class of persons)
concerned at the public event or premises or other area concerned poses a
serious risk to public safety or security, and
(b)
the making of the order is reasonably necessary
in the circumstances.
Note—
Section 87S includes provisions about the content
of a public safety order, including in relation to its
duration.
Section 87T contains provisions concerning the
service and notification of variations to public safety orders. In particular,
section 87T (4) provides that a statement of the reasons for making or varying
a public safety order must not contain information that would result in the
disclosure of a criminal intelligence report or other criminal information
held in relation to a person.
(2)
In determining whether the making of a public
safety order is reasonably necessary in the circumstances, the senior police
officer must take into account the following matters and may take into account
any other matter that the officer considers relevant:
(a)
whether the person or persons to whom the order
will apply previously behaved in a way that posed a serious risk to public
safety or security or have a history of engaging in serious crime related
activity within the meaning of the Criminal Assets
Recovery Act 1990,
(b)
whether the person or persons to whom the order
will apply:
(i)
are, or have been, members of a declared
organisation (within the meaning of the Crimes (Criminal
Organisations Control) Act 2012), or
(ii)
are, or have been, subject to control orders
under that Act, or
(iii)
associate, or have associated, with members of a
declared organisation or persons subject to control orders within the meaning
of that Act,
(c)
if advocacy, protest, dissent or industrial
action is likely to be the primary purpose for the person or persons to whom
the order will apply being present at the relevant public event or premises or
other area—the public interest in maintaining freedom to participate in
such activities,
(d)
whether the person or persons to whom the order
will apply will be prevented from being present at any of the
following:
(i)
a place of work at which the person or persons
are regularly employed,
(ii)
an educational institution attended by the person
or persons,
(iii)
a place of worship attended by the person or
persons,
(iv)
a place at which the person or persons receive a
health service or welfare service,
(v)
a place at which the person or persons are
provided with legal services by any Australian legal practitioners or by any
organisations employing or otherwise using one or more Australian legal
practitioners to provide such services,
(e)
whether the degree of risk involved justifies the
imposition of the prohibitions to be specified in the order (having regard, in
particular, to any legitimate reason the person or persons to whom the order
will apply may have for being present at the relevant event or premises or
other area),
(f)
the extent to which the making of the order will
mitigate any risk to public safety or security,
(g)
the extent to which the order is necessary having
regard to other measures reasonably available to mitigate the
risk.
(3)
However, a senior police officer must not make a
public safety order that would prohibit a person or class of persons from
being present at any public event or premises or other area if:
(a)
the officer believes that non-violent advocacy,
protest or dissent is likely to be the primary purpose for their presence at
the public event or premises or other area, or
(b)
the officer believes that industrial action is
likely to be the primary purpose for their presence at the public event or
premises or other area, or
(c)
the order would prevent them from entering their
principal places of residence.
(4)
A senior police officer must not make a public
safety order if the period during which the order will be in force would, when
added to the period of any previous orders made in connection with the same
person or persons and public event or premises or other area, result in the
combined period exceeding the maximum period of duration for the kind of order
concerned referred to in section 87S (1).
(5)
For the purposes of this section, the presence of
a person or persons at a public event or premises or other area poses a
serious
risk to public safety or security if there is a serious risk
that the presence of the person or persons might result in:
(a)
the death of, or serious physical harm to, a
person, or
(b)
serious damage to
property.
(6)
In this section:
damage, in relation to property,
includes the following:
(a)
destruction of the property,
(b)
an alteration to the property that depreciates
its value,
(c)
rendering the property useless or
inoperative,
(d)
in relation to an animal—injuring, wounding
or killing the animal.
87SContent and duration of public
safety order
(1)
A public safety order must specify:
(a)
the public event or premises or other area to
which it applies, and
(b)
the person (or class of persons) to which it
applies, and
(c)
that a contravention of the order may constitute
an offence that carries a maximum penalty of imprisonment for 5 years,
and
(d)
in the case of an order that applies to premises
or another area other than in connection with a public event—the period
during which the order will be in force (being a period not exceeding 72
hours), and
(e)
in the case of an order that applies to a public
event:
(i)
the location or locations in which the event is
being held for the purposes of the order, and
(ii)
if the public event is held over consecutive
days—when the event is taken to start and finish for the purposes of the
order, and
(iii)
if the public event is held over non-consecutive
days—when the event is taken to start and finish for the purposes of the
order for each of the days it is held (being a combined period that does not
exceed 72 hours in total).
Note—
Division 3 enables a person to whom a public
safety order applies to appeal to the Supreme Court against the order (or a
variation of the order) if the order is (or is to be) in force for a period
exceeding 72 hours.
(2)
Subject to subsection (3), a public safety order
remains in force only for the period or periods specified in the order in
accordance with this section.
(3)
A public safety order that applies to a public
event that is cancelled ceases to be in force on that
cancellation.
87TService and notification of
public safety order or variation of order
(1)Ordinary service and
notification requirements
A senior police officer who makes or varies a
public safety order must ensure that both of the following are served by means
of personal service on each person to whom the order applies:
(a)
a copy of the order as so made or
varied,
(b)
a notification in accordance with this
section.
(2)
If the senior police officer considers that a
person to whom the order applies is a person under the age of 18 years or has
impaired intellectual functioning, the officer must ensure that the order and
notification are also served by means of personal service on a parent or
guardian (if any) of the person if it is reasonably practicable to do so.
However, a failure to do so does not prevent the order or variation from
becoming binding when it is served on the person.
(3)
The notification accompanying the order:
(a)
must be in writing, and
(b)
must specify the date on which the order or
variation was made, and
(c)
must:
(i)
subject to subsection (4), include a statement of
the reasons for making or varying the public safety order,
and
(ii)
include an explanation of the right of appeal to
the Supreme Court against the decision under Division
3.
(4)
Despite any other Act or law, a statement of the
reasons for making or varying a public safety order must not contain
information that would result in the disclosure of a criminal intelligence
report or other criminal information held in relation to a
person.
(5)
A public safety order (as made or varied) is not
binding on a person to whom the order applies unless the order and
notification have been served on that person in accordance with subsection
(1).
(6)
Once a public safety order and notification have
been served on a person in accordance with subsection (1), the order is
binding on the person, regardless of whether any other person or persons to
whom the order applies have been so served.
(7)Urgent
orders
Despite subsections (1)–(6), if a police
officer is satisfied that a public safety order (as made or varied) should
become binding on a person as a matter of urgency:
(a)
the officer may communicate the contents of the
order, or the order as so varied, verbally to any person to whom the order
applies and advise such person of the place at which the person may obtain a
written copy of the order and a notification in accordance with subsection
(8), and
(b)
on the information described in paragraph (a)
being communicated to the person, the order, or the order as so varied, is
binding on the person.
(8)
The police officer who verbally communicates the
order to the person must ensure that the following are both available for
collection by the person at a police station that is reasonably accessible by
the person within 12 hours after the communication:
(a)
a copy of the order,
(b)
the notification that would have been required to
accompany the order if the order had been served on the person in accordance
with subsection (1).
87UVariation and revocation of
public safety order
(1)
Subject to subsection (3), a public safety order
may be varied or revoked by a senior police officer before the order ceases to
be in force (whether or not he or she is the same officer who made the
original order).
(2)
Without limiting subsection (1), the Commissioner
must revoke a public safety order if the Commissioner becomes aware that the
order was erroneously made or that the grounds for its making no longer
exist.
(3)
A public safety order that is made or varied by
the Commissioner may be subsequently varied or revoked only by the
Commissioner.
(4)
A variation of a public safety order must comply
with the requirements of this Part concerning the appropriate content,
duration and grounds for making a public safety order.
Note—
See also section 87T concerning the service and
notification of variations to public safety orders.
(5)
The revocation of a public safety order takes
effect when the person to whom the order applies is served by means of
personal service with a written notice of the
revocation.
(6)
If a public safety order applies to more than one
person and a variation or revocation is served on those persons at different
times, the order continues in force in relation to a person to whom the order
applies until:
(a)
in the case of a variation—the varied order
is served on, or otherwise brought to the notice of, the person in accordance
with section 87T, or
(b)
in the case of a revocation—the written
notice of revocation is served on the person.
Division 3Appeals against long duration
public safety orders
87VApplication of
Division
This Division applies only to a public safety
order that is (or is to be) in force for a period exceeding 72 hours (a
long
duration public safety order).
87WAppeal to Supreme Court
against long duration public safety orders
(1)
A person to whom a long duration public safety
order applies may appeal to the Supreme Court against:
(a)
the decision to make the order,
or
(b)
a decision to vary the order (unless the decision
operates to reduce the duration of the order to 72 hours or
less).
(2)
An appeal under this Division must be made before
the long duration public safety order ceases to be in
force.
(3)
The making of an appeal under this Division does
not affect the operation of the long duration public safety order under
appeal.
87XCriminal intelligence reports
or other criminal information
(1)
The Commissioner may make an application to the
Supreme Court in an appeal under this Division for the Court not to disclose
the existence or content of any criminal intelligence report or other criminal
information used in connection with the making or variation of the long
duration public safety order under appeal.
(2)
The Supreme Court may grant the application if
the Court:
(a)
is satisfied that the information to which the
application relates is a criminal intelligence report or other criminal
information, and
(b)
considers that it is in the interests of justice
to grant the application.
(3)
In determining whether it is in the interests of
justice to grant the application, the Supreme Court is to take into account
each of the following matters concerning the effect of disclosure of the
criminal intelligence report or other criminal information to which the
application relates:
(a)
whether disclosure will have a prejudicial effect
on the prevention, investigation or prosecution of an
offence,
(b)
whether disclosure will result in the existence
or identity of a confidential source of information relevant for law
enforcement purposes being revealed or made discoverable,
(c)
whether disclosure will result in confidential
investigative methods or techniques used by police or security agencies being
revealed or made discoverable,
(d)
whether disclosure will endanger a person’s
life or physical safety.
(4)
If the Supreme Court grants the application, the
Court:
(a)
is to ensure that the Court does not, in the
reasons for its decision on the appeal or otherwise, disclose the existence or
content of the criminal intelligence report or other criminal information to
which the application relates, and
(b)
in order to prevent the disclosure of the
criminal intelligence report or other criminal information, is to receive
evidence and hear argument in the appeal in the absence of the public, the
appellant, the appellant’s representative and any other party, unless
the Commissioner approves otherwise.
Note—
Section 87T (4) provides that a statement of the
reasons of a senior police officer for making or varying a public safety order
must not contain information that would result in the disclosure of a criminal
intelligence report or other criminal information held in relation to a
person.
(5)
If the Supreme Court refuses the application, the
Commissioner is entitled to withdraw the tender of the information to which
the application relates as evidence in the appeal.
(6)
Information that is withdrawn by the Commissioner
must not be:
(a)
disclosed to any person, or
(b)
taken into consideration by the Supreme Court in
determining an appeal under this Division.
87YDetermination of appeal on the
merits
(1)
On an appeal under this Division, the Supreme
Court is to decide what the correct and preferable decision is having regard
to the material then before it, including the following:
(a)
any relevant factual
material,
(b)
any applicable written or unwritten
law.
(2)
In determining the appeal, the Supreme Court may
decide:
(a)
to affirm the decision under appeal,
or
(b)
to vary the decision under appeal,
or
(c)
to set aside the decision under appeal,
or
(d)
to set aside the decision under appeal and make a
decision in substitution for the decision that is set
aside.
87ZRules of
court
Rules of court may be made under the Civil Procedure Act 2005 and the Supreme Court Act 1970 for or with
respect to the practice and procedure to be followed in respect of an appeal
under this Division and any matters incidental to, or relating to, such
practice and procedure.
Division 4Miscellaneous
87ZAContravention of public safety
order
A person to whom a public safety order applies
must not contravene the order.
Maximum penalty: Imprisonment for 5
years.
87ZBPower to search premises and
other areas and vehicles in connection with public safety
order
(1)
A police officer may, without a warrant, enter
and search any of the following premises or other areas if the police officer
suspects on reasonable grounds that a person to whom a public safety order
applies is within the premises or area:
(a)
premises or other areas specified in the public
safety order,
(b)
premises or other areas in which a public event
specified in the public safety order is being held.
(2)
A police officer may, without a warrant, stop and
search a vehicle, and anything in or on a vehicle, if the police officer
suspects on reasonable grounds that:
(a)
a person within the vehicle is a person to whom a
public safety order applies, and
(b)
the vehicle is approaching, is in, or has
recently left, any public event or premises or other area specified in the
public safety order.
(3)
A police officer may detain a vehicle for so long
as is reasonably necessary to conduct a search under this
section.
87ZCRegulations
(1)
The regulations may make provision for or with
respect to the following:
(a)
forms for public safety orders or notices under
this Part,
(b)
the means for effecting personal service of
public safety orders and other documents for the purposes of this
Part,
(c)
safeguards for vulnerable persons in connection
with the making, service, variation or revocation of public safety orders that
apply to them.
(2)
In this section:
vulnerable person means a person who
falls into any one or more of the following categories:
(a)
persons who are under the age of 18
years,
(b)
persons who have impaired intellectual
functioning,
(c)
persons who have impaired physical
functioning,
(d)
persons who are Aboriginal persons or Torres
Strait Islanders,
(e)
persons who are of non-English speaking
background.
[2]Section 234 Proceedings for
offences
Insert “(except section 87ZA)” after
“this Act”.
Historical
notes
Table of amending
instruments
Criminal
Legislation Amendment (Organised Crime and Public Safety) Act 2016
No 16. Assented to 11.5.2016. Date of commencement, Schs 1, 2, 3 and
4 [1] and [3] excepted, 31.3.2017, sec 2 and 2017 (95) LW 24.3.2017; date of
commencement of Schs 1, 2 and 4 [1] and [3], 8.9.2016, sec 2 and 2016 (577) LW
8.9.2016; date of commencement of Sch 3, 29.7.2016, sec 2 and 2016 (458) LW
29.7.2016.
This Act has been amended by sec 30C of the
Interpretation Act 1987 No
15.
Table of
amendments
Schs
1–3
Rep 1987 No
15, sec 30C.
Sch
4
Am 1987 No
15, sec 30C.