The Act lets specified government bodies (Commissioner of Police, DPP, NSW Crime Commission) ask a court to impose a tailored “serious crime prevention order” (SCPO) on an adult to prevent, restrict or disrupt involvement in serious‑crime‑related activity. Proceedings are civil with relaxed evidentiary rules; orders can be broad but cannot breach privilege or certain banking confidences.
Breaching an SCPO is a criminal offence with heavy fines/prison; corporate breaches can trigger winding‑up or dissolution applications. Orders last up to five years and may address past conduct.
The Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) establishes a civil preventive regime under which an “eligible applicant” (defined in s 3(1) as the Commissioner of Police, the Director of Public Prosecutions or the NSW Crime Commission) may apply to an appropriate court for a serious crime prevention order against a natural person aged 18 or older. Section 5(1) sets out the three cumulative preconditions: the person must satisfy the age requirement, the court must be satisfied that the person has either been convicted of a serious criminal offence (defined by reference to the Criminal Assets Recovery Act 1990) or has been “involved in serious crime related activity” (defined expansively in ss 3(1) and 4), and the court must be satisfied that there are reasonable grounds to believe the order would protect the public by preventing, restricting or disrupting the person’s involvement in serious crime related activities.
Section 4(1) provides three alternative limbs for “involved in serious crime related activity”: (a) the person has engaged in it, (b) the person has facilitated another person’s engagement, or (c) the person has engaged in conduct likely to facilitate such activity (by themselves or another). Subsection (2) permits the court, when assessing facilitation, to consider whether the conduct was reasonable in all the circumstances. Notably, the definition of serious crime related activity in s 3(1) expressly captures conduct that was a serious criminal offence at the time even if the person was never charged, was acquitted, or the conviction was later quashed.
Once made, a serious crime prevention order may contain any prohibitions, restrictions, requirements or other provisions the court considers appropriate for the protective purpose (s 6(1)). However, s 6(2) erects five bright-line limits: the order cannot require oral answers or information, disclosure of client legal privilege, disclosure of protected confidences under Division 1A of Part 3.10 of the , production of confidential banking material unless the owner consents or the order specifically requires it, or any disclosure prohibited by another Act (other than the itself). Any compelled evidence receives use-immunity under s 6(3) except in proceedings for an offence against s 8 or where the person has adduced the evidence themselves.
Current sections
Direct links to the current provisions in Crimes (Serious Crime Prevention Orders) Act 2016.
This Act commences on a day or days to be appointed by proclamation.
3
Definitions
3 Definitions
3 Definitions
(1) In this Act—
appropriate court, in relation to an application for, or the making of, a serious crime prevention order against a person, means—
(a) if the ground for making the order is that the person has been convicted of a serious criminal offence—either the Supreme Court or the District Court, or
(b) if the ground for making the order is that the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence—the Supreme Court.
eligible applicant means any of the following—
(a) the Commissioner of Police,
(b) the Director of Public Prosecutions,
(c) the New South Wales Crime Commission.
involved in serious crime related activity—see section 4.
modification includes addition, exception, omission or substitution.
serious crime prevention order—see section 5.
serious crime related activity means anything done by a person that is or was at the time a serious criminal offence, whether or not—
(a) the person has been charged with the offence, or
(b) if charged, the person—
(i) has been tried, or
(ii) has been tried and acquitted, or
(iii) has been convicted (even if the conviction has been quashed or set aside).
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) Notes included in this Act do not form part of this Act.
4
Meaning of “involved in serious crime related activity”
4 Meaning of “involved in serious crime related activity”
4 Meaning of “involved in serious crime related activity”
(1) For the purposes of this Act, a person is involved in serious crime related activity if—
(a) the person has engaged in serious crime related activity, or
(b) the person has engaged in conduct that has facilitated another person engaging in serious crime related activity, or
(c) the person has engaged in conduct that is likely to facilitate serious crime related activity (whether by the person or another person).
(2) In determining whether the conduct of a person has facilitated another person to engage in serious crime related activity, a court may take into account whether the conduct was reasonable in all the circumstances.
Part 2
Serious crime prevention orders
Part 2 Serious crime prevention orders
Part 2 Serious crime prevention orders
5
Making of serious crime prevention orders
5 Making of serious crime prevention orders
5 Making of serious crime prevention orders
(1) An appropriate court may, on the application of an eligible applicant, make an order (a serious crime prevention order) against a specified person if—
(a) in the case of a natural person—the person is 18 years old or older, and
(b) the court is satisfied that—
(i) the person has been convicted of a serious criminal offence, or
(ii) the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence (including by reason of being acquitted of, or not being charged with, such an offence), and
(c) the court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.
(2) If the ground relied on for an application for a serious crime prevention order against a person is that the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence by reason of an acquittal, the application must include the following information—
(a) the serious criminal offence of which the person was acquitted,
(b) the court in which the offence was tried,
(c) the date on which the person was acquitted.
(3) Unless the appropriate court orders otherwise, the applicant must serve a copy of the application on the person against whom the serious crime prevention order is sought at least 14 days before the hearing date for the application.
(4) The person against whom a serious crime prevention order is sought and any other person whose interests may be affected by the making of the order may appear at the hearing of the application and make submissions in relation to the application.
(5) In determining an application for a serious crime prevention order, the court may admit and take into account hearsay evidence despite any rule relating to the admission of hearsay evidence (whether under the Evidence Act 1995 or otherwise) if—
(a) the court is satisfied that the evidence is from a reliable source and is otherwise relevant and of probative value, and
(b) the person against whom the order is sought to be made has been notified of, and served with a copy of, the evidence before its admission.
(6) The applicant must ensure that a serious crime prevention order is served (whether by the applicant or another person) on the person against whom it is made. The order must be served by means of personal service.
6
Content of serious crime prevention order
6 Content of serious crime prevention order
6 Content of serious crime prevention order
(1) A serious crime prevention order may contain such prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.
(2) However, a serious crime prevention order cannot contain provisions that require a person—
(a) to answer questions or provide information orally, or
(b) to answer questions, or to provide documents or other information, that are subject to client legal privilege (legal professional privilege), or
(c) to disclose protected confidences (within the meaning of Division 1A of Part 3.10 of the Evidence Act 1995), or
(d) to provide documents or other information that is held by the person in confidence as part of a banking business unless—
(i) the person to whom the confidence is owed has consented, or
(ii) the order specifically requires the provision or production of the documents or other information concerned (or documents or other information of the kind concerned), or
(e) to answer questions, or to provide documents or other information, that would result in a disclosure prohibited by a provision of another Act (other than the Evidence Act 1995).
(3) Without limiting subsection (2), an answer given, or document or other information provided, by a person in compliance with a requirement of a serious crime prevention order (the compelled evidence) is not admissible as evidence against that person in civil or criminal proceedings other than—
(a) proceedings for an offence against section 8, or
(b) proceedings in which the person has adduced the compelled evidence.
7
Duration of serious crime prevention order
7 Duration of serious crime prevention order
7 Duration of serious crime prevention order
(1) A serious crime prevention order—
(a) takes effect when it is served on the person against whom it is made or on such later date as may be specified in the order, and
(b) once it takes effect, has effect for the period specified in the order.
(2) The period specified in a serious crime prevention order for its duration must not exceed a period of 5 years.
8
Offence: contravention of serious crime prevention order
8 Offence: contravention of serious crime prevention order
8 Offence: contravention of serious crime prevention order
A person against whom a serious crime prevention order is in effect must not contravene the order.
Maximum penalty—
(a) in the case of a corporation—1,500 penalty units, or
(b) in the case of a natural person—300 penalty units or imprisonment for 5 years, or both.
9
Winding up of voluntary corporation for contravening serious crime prevention orders
9 Winding up of voluntary corporation for contravening serious crime prevention orders
9 Winding up of voluntary corporation for contravening serious crime prevention orders
(1) An eligible applicant may apply to the Supreme Court for an order (a compulsory winding up order) requiring the winding up of a voluntary corporation that has been convicted of an offence against section 8.
(2) The Supreme Court may make a compulsory winding up order against a voluntary corporation if the Court is satisfied that—
(a) the corporation has been convicted of an offence against section 8, and
(b) there are no further avenues of appeal available to the corporation in respect of the conviction, and
(c) it is in the public interest, and just and equitable, for the corporation to be wound up.
(3) If a compulsory winding up order is made against an association, Part 6 of the Associations Incorporation Act 2009 is taken (subject to such modifications as may be prescribed by the regulations) to apply to the winding up of the association as if the Supreme Court had made an order under section 63 (1) (i) of that Act for its winding up.
(4) If a compulsory winding up order is made against a company, the winding up of the company pursuant to that order is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to Chapter 5 of the Corporations Act, subject to the following modifications—
(a) the order is taken to have effect for the purposes of the provisions as if the Supreme Court has made an order for the winding up of the company under section 461 (1) (k) of the Corporations Act,
(b) such other modifications as may be prescribed by the regulations.
Note—
Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act 2001 and Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions. Section 14 (2) of the Corporations (Ancillary Provisions) Act 2001 ensures that a declaration made for the purposes of Part 3 of that Act only operates to apply a provision of the Corporations legislation to a matter as a law of the State if that provision does not already apply to the matter as a law of the Commonwealth. If a provision referred to in a declaration already applies as a law of the Commonwealth, nothing in the declaration will affect its continued operation as a law of the Commonwealth.
(5) Subsections (1), (2) and (4) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of Chapter 5 of the Corporations Act.
Note—
Section 5G of the Corporations Act enables a State to displace the operation of provisions of the Corporations legislation in favour of provisions of State laws that are declared under State law to be Corporations legislation displacement provisions for the purposes of that section. See, in particular, section 5G (4), (8) and (11) of the Corporations Act in relation to the displacements effected by this subsection.
(1) An eligible applicant may apply to the Supreme Court for an order (a compulsory dissolution order) requiring the dissolution of a partnership if the partnership has, or one or more of the partners have, been convicted of an offence against section 8.
Note—
The Partnership Act 1892 provides for incorporated limited partnerships. Incorporated limited partnerships are persons for the purposes of this Act because they are bodies corporate. See the definition of person in the Interpretation Act 1987.
(2) The Supreme Court may make a compulsory dissolution order against a partnership if the Court is satisfied that—
(a) the partnership has, or one or more of the partners have, been convicted of an offence against section 8, and
(b) there are no further avenues of appeal available to the partnership or partners in respect of the conviction or convictions, and
(c) it is in the public interest, and just and equitable, for the partnership to be dissolved.
(3) If a compulsory dissolution order is made against a partnership—
(a) in the case of an incorporated limited partnership—Schedule 1 to the Partnership Act 1892 is taken (subject to such modifications as may be prescribed by the regulations) to apply to the dissolution of the partnership as if the Registrar had published a conclusive certificate under clause 3 of that Schedule on the date the order takes effect that the partnership is required to be wound up, or
(b) in the case of any other partnership—Division 4 of Part 2 of the Partnership Act 1892 is taken (subject to such modifications as may be prescribed by the regulations) to apply to the dissolution as if the Supreme Court had made an order for dissolution under section 35 (f) of that Act.
(4) In this section—
incorporated limited partnership and Registrar have the same meaning as in the Partnership Act 1892.
s 10: Am 2023 No 7, Sch 3.7.
11
Right of appeal in relation to making of serious crime prevention order
11 Right of appeal in relation to making of serious crime prevention order
11 Right of appeal in relation to making of serious crime prevention order
(1) Each of the following persons may appeal to the Court of Appeal against a decision of the Supreme Court or the District Court in relation to the making of a serious crime prevention order—
(a) the applicant for the order,
(b) the person against whom such an order is made.
(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 grants leave for it to be made after that time.
(4) 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.
12
Variation or revocation of serious crime prevention order
12 Variation or revocation of serious crime prevention order
12 Variation or revocation of serious crime prevention order
(1) The court that makes a serious crime prevention order may at any time vary or revoke the order on application by—
(a) the applicant for the order, or
(b) the person against whom the order is made.
(2) An application for the variation or revocation of a serious crime prevention order may only be made by the person against whom the order was made 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, before varying or revoking a serious crime prevention order under this section, must—
(a) allow all parties to the proceedings for the original order 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 serious crime prevention order and the content of a serious crime prevention order.
Part 3
Miscellaneous
Part 3 Miscellaneous
Part 3 Miscellaneous
13
Proceedings for serious crime prevention orders are civil and not criminal
13 Proceedings for serious crime prevention orders are civil and not criminal
13 Proceedings for serious crime prevention orders are civil and not criminal
(1) For the purposes of this Act, proceedings on an application for a serious crime prevention order are not criminal proceedings.
(2) Except in relation to an offence against this Act—
(a) the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of the provisions of this Act, and
(b) the rules of evidence applicable in civil proceedings (including as to the burden of proof) apply, and those applicable only in criminal proceedings do not apply, to proceedings under this Act.
14
Rules of court
14 Rules of court
14 Rules of court
Rules of court may be made under the Civil Procedure Act 2005, the Supreme Court Act 1970 and the District Court Act 1973 for or with respect to the practice and procedure to be followed in respect of proceedings under this Act for serious crime prevention orders and any matters incidental to, or relating to, such practice and procedure.
15
Regulations
15 Regulations
15 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
16
Review of Act
16 Review of Act
16 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 3 years from the commencement of this Act.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 3 years.
Schedule 1
Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
Schedule 2
Schedule 2
Schedule 2 (Repealed)
sch 2: Rep 1987 No 15, sec 30C.
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Crimes (Serious Crime Prevention Orders) Act 2016.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
3 Definitions
3 Definitions
(1) In this Act—
appropriate court, in relation to an application for, or the making of, a serious crime prevention order against a person, means—
(a) if the ground for making the order is that the person has been convicted of a serious criminal offence—either the Supreme Court or the District Court, or
(b) if the ground for making the order is that the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence—the Supreme Court.
eligible applicant means any of the following—
(a) the Commissioner of Police,
(b) the Director of Public Prosecutions,
(c) the New South Wales Crime Commission.
involved in serious crime related activity—see section 4.
modification includes addition, exception, omission or substitution.
serious crime prevention order—see section 5.
serious crime related activity means anything done by a person that is or was at the time a serious criminal offence, whether or not—
(a) the person has been charged with the offence, or
(b) if charged, the person—
(i) has been tried, or
(ii) has been tried and acquitted, or
(iii) has been convicted (even if the conviction has been quashed or set aside).
serious criminal offence has the same meaning as in the Criminal Assets Recovery Act 1990.
Evidence Act 1995
Evidence Act 1995
The order takes effect on personal service or a later specified date and cannot exceed five years (s 7). Contravention is a strict-liability offence under s 8 carrying a maximum penalty of 1,500 penalty units for a corporation or 300 penalty units or five years imprisonment (or both) for a natural person. Where a corporation or partnership is convicted under s 8 and appeal rights are exhausted, eligible applicants may seek compulsory winding-up (s 9) or dissolution (s 10) orders from the Supreme Court if it is in the public interest and just and equitable. These provisions apply modified versions of the Associations Incorporation Act 2009, the Corporations Act 2001 (Cth) (with explicit displacement under s 5G) and the Partnership Act 1892.
Procedurally, the regime is declared to be entirely civil: s 13(1) states that proceedings on an application are not criminal proceedings, and s 13(2) disapplies criminal rules of construction and evidence while applying civil rules including the civil standard of proof. Hearsay is admissible if the court is satisfied it comes from a reliable source, is relevant, has probative value, and the respondent has been served with it in advance (s 5(5)). Appeals lie to the Court of Appeal as of right on questions of law and with leave on questions of fact (s 11). Variation or revocation is available on application by either side, but a respondent requires leave founded on a substantial change in relevant circumstances (s 12). The Act applies retrospectively to conduct occurring before commencement (Sch 1 cl 2) and contains a three-year policy review mechanism that has now been spent (s 16).
In short, the statute creates a hybrid civil–regulatory tool that sits between ordinary criminal prosecution and control-order regimes, deliberately lowering evidentiary thresholds while cabining the intrusive potential of the orders themselves.
Who it affects
The primary cohort is natural persons 18 years or older against whom an order is sought or made. Section 5(1)(a) expressly excludes children. Because the jurisdictional gateway in s 3(1) distinguishes between conviction-based and non-conviction-based applications, two distinct classes exist: those with a prior conviction for a serious criminal offence (who may be dealt with in either the Supreme or District Court) and those alleged only to have been involved in serious crime related activity without conviction (Supreme Court only). The breadth of the s 4 definition means the second class can include facilitators, conspirators, and even persons whose conduct is merely “likely to facilitate” future activity.
Eligible applicants are limited to three public agencies: the Commissioner of Police, the Director of Public Prosecutions and the NSW Crime Commission (s 3(1)). Third parties “whose interests may be affected” by the making of an order are entitled to appear and make submissions (s 5(4)), which could include business partners, family members, or entities that would be indirectly restricted by an order prohibiting the respondent from associating with them or entering their premises.
Corporate and unincorporated entities are indirectly but materially affected through the winding-up and dissolution provisions. Section 9 applies to any “voluntary corporation” (company or incorporated association) convicted of a s 8 offence; s 10 applies to partnerships (including incorporated limited partnerships) where the partnership itself or one or more partners have been convicted. The Interpretation Act 1987 definition of “person” brings bodies corporate within the reach of the primary order-making power, so a company can itself be the respondent to a serious crime prevention order.
Finally, the regime affects the broader public by its stated object of protection through disruption. Because orders can prohibit association with named individuals or entry into identified localities, the ripple effects extend to the respondent’s social, commercial and family networks even though those networks are not formal parties.
Key duties and rights
The statute creates few positive duties but a large number of negative restraints that may be imposed by order. The central duty is the obligation not to contravene an order once it is in force (s 8). There is no general duty to answer questions or produce documents unless an order specifically requires it, and even then s 6(2) prevents the order from overriding client legal privilege, protected confidences, or statutory secrecy obligations. Where an order does compel production, the recipient enjoys the use-immunity in s 6(3).
Respondents possess procedural rights that reflect the civil character of the proceedings. They are entitled to 14 days’ notice of the application (s 5(3)), to appear and make submissions (s 5(4)), to be served with any hearsay evidence before it is admitted (s 5(5)(b)), and to appeal as of right on questions of law (s 11(2)). A respondent seeking variation or revocation must first obtain leave by demonstrating a substantial change in relevant circumstances (s 12(2)), but once leave is granted both sides are entitled to be heard (s 12(3)).
Eligible applicants have a statutory right to apply, to rely on hearsay, and to seek consequential orders for winding-up or dissolution after a conviction. They also bear the obligation to serve the final order by personal service (s 5(6)) and to include specific historical details when relying on an acquittal (s 5(2)).
Courts are placed under a duty to consider the protective purpose at every stage: when deciding whether to make an order (s 5(1)(c)), when settling its content (s 6(1)), when varying or revoking it (s 12(3)(b)), and when deciding whether to wind up a corporation or dissolve a partnership (ss 9(2)(c), 10(2)(c)). The legislation is otherwise silent on positive duties such as reporting or rehabilitation programmes; the emphasis is squarely on restriction and disruption.
Penalties and enforcement
The principal enforcement mechanism is the criminal offence in s 8. Because proceedings for the order itself are civil (s 13), the offence of contravention is prosecuted in the ordinary criminal courts on the criminal standard. The maximum penalties are substantial: 1,500 penalty units for a corporation and, for a natural person, 300 penalty units or five years imprisonment or both. The Act does not create a continuing offence or daily penalty provision, so each distinct contravention must be separately charged.
Secondary enforcement occurs through the compulsory winding-up (s 9) and dissolution (s 10) jurisdictions. These are civil applications to the Supreme Court. The court must be satisfied of conviction, exhaustion of appeal rights, and that winding-up or dissolution is in the public interest and just and equitable. Once made, the orders trigger modified statutory winding-up or dissolution regimes that incorporate large parts of the Corporations Act 2001 (with s 5G displacement) or the Partnership Act 1892. The practical effect is that a corporation or partnership can be forcibly terminated for repeated breaches of a preventive order.
Enforcement of the order itself is supported by the personal-service requirement (s 5(6)) and the rule that the order takes effect on service or a later stated date (s 7(1)(a)). There is no statutory power for police to arrest for anticipated breach; enforcement is therefore post-breach via prosecution. The use-immunity in s 6(3) prevents compelled evidence from being deployed in the contravention prosecution itself unless the respondent has waived the immunity by adducing the evidence.
How it interacts with other laws
The Act is deliberately knitted into a web of existing statutes. The term “serious criminal offence” is imported wholesale from the Criminal Assets Recovery Act 1990 (s 3(1)), thereby aligning the preventive regime with the confiscation regime. Hearsay admissibility, client legal privilege and protected confidences are governed by express reference to the Evidence Act 1995 (ss 5(5), 6(2)(b)–(c)). Rules of court are made under the Civil Procedure Act 2005, Supreme Court Act 1970 and District Court Act 1973 (s 14).
The most intricate interaction occurs in the corporate and partnership provisions. Section 9(4) declares the winding-up of a company to be an applied Corporations legislation matter for Chapter 5 of the Corporations Act 2001 (Cth), with the Supreme Court’s order treated as if made under s 461(1)(k). Sub-section (5) expressly displaces Chapter 5 via s 5G of the Corporations Act, ensuring State law prevails. Similar modification techniques are used for associations (s 9(3)) and partnerships (s 10(3)). The Interpretation Act 1987 supplies the definition of “person” that brings corporations within the primary order-making power.
Section 6(2)(e) preserves the operation of any other Act that prohibits disclosure, except the Evidence Act 1995. This creates a hierarchy in which secrecy provisions in, for example, taxation or banking legislation will prevail over an order. The civil-character declaration in s 13 displaces criminal rules of construction and evidence for the making of the order but leaves criminal rules intact for the s 8 prosecution.
Finally, the retrospective application clause in Sch 1 cl 2 interacts with any limitation periods or finality doctrines that might otherwise bar reliance on historic conduct. Because the Act does not create new offences for past behaviour, but merely uses that behaviour as a jurisdictional fact, constitutional ex post facto concerns are minimised.
Recent changes and why
The only amendment disclosed in the supplied text is the 2023 amendment to s 10 by the Statute Law (Miscellaneous Provisions) Act 2023 No 7, Sch 3.7. The change is not reproduced in full but is noted immediately after s 10(4). Given its placement in the partnership dissolution provision, it is reasonable to infer a technical adjustment to the interaction with the Partnership Act 1892 or the definition of incorporated limited partnership. The amendment does not alter the substantive scope of the preventive order regime; it is machinery.
The mandatory three-year review (s 16) was required to be completed and tabled by approximately 2020. No subsequent amending Act expanding the regime’s reach appears in the text, suggesting that the policy settings have remained stable. The absence of further change may reflect a legislative judgment that the balance struck in 2016 between civil flexibility and the protections in s 6 continues to be appropriate, or that enforcement activity has not yet revealed systemic weaknesses requiring recalibration.
Court challenges and controversies
The Act itself does not record specific court challenges, but its structure invites several foreseeable points of contention that are grounded in the statutory text. First, the breadth of “involved in serious crime related activity” in s 4(1)(c) — conduct “likely to facilitate” future activity — raises questions about the degree of remoteness the civil standard of proof can accommodate. Courts must determine whether the civil balance of probabilities is satisfied that the conduct is likely to facilitate serious crime, yet the same conduct could be too tenuous to support a criminal charge.
Second, the hearsay gateway in s 5(5) requires the court to be “satisfied that the evidence is from a reliable source”. This formulation leaves open whether reliability is assessed solely on the face of the material or whether the respondent can lead contradictory evidence on the voir dire. Because the provision overrides the Evidence Act 1995 hearsay rule only to the extent the court is so satisfied, disputes about the boundaries of that satisfaction are inevitable.
Third, the “substantial change in relevant circumstances” test in s 12(2) for respondent-initiated variation has not been the subject of reported appellate guidance in the supplied text, yet its application will determine how readily an order that lasts up to five years can be revisited when, for example, the respondent’s family or business situation alters.
Fourth, the interaction between a serious crime prevention order and subsequent criminal proceedings raises double-jeopardy style arguments even though s 13 declares the order proceedings to be civil. A respondent who has been acquitted of a serious criminal offence may still face an order based on the same facts; s 5(2) requires the applicant to disclose the acquittal, but does not prevent the order being made.
Finally, the compulsory winding-up and dissolution powers in ss 9 and 10 engage corporate and partnership law principles of “just and equitable” winding-up. The statute expressly requires the Supreme Court to be satisfied it is in the public interest as well as just and equitable. The weighting to be given to each element, and whether public interest can override ordinary creditor or partner interests, remains a live construction question.
Gotchas
Most practitioners assume that because the proceedings are civil the ordinary rules of evidence apply without exception; yet s 5(5) carves out a bespoke hearsay admissibility test that is neither the Evidence Act test nor the common-law exception. The reliability assessment is a threshold question for the court, not a matter of weight, and the statute places the onus on the applicant to serve the material in advance. Failure to do so is fatal to admission even if the evidence is otherwise compelling.
Another trap is the apparently absolute language of s 6(2)(a) prohibiting any requirement to “answer questions or provide information orally”. An order that requires attendance at a police station to “discuss compliance” may be challenged as indirectly requiring oral answers. Courts are likely to read the prohibition literally.
The use-immunity in s 6(3) is narrower than many expect. It does not prevent derivative use; it only prevents the compelled evidence itself from being tendered against the person except in a s 8 prosecution or where the person waives by adducing it. In a later confiscation proceeding under the Criminal Assets Recovery Act 1990 the compelled material could still found an inference.
Corporate respondents frequently overlook that the Interpretation Act 1987 definition of “person” allows an order to be made directly against a company. Once made, any breach by the company’s officers can trigger both the corporate penalty and, after conviction, the separate winding-up application under s 9. The public-interest limb in s 9(2)(c) gives the Supreme Court a broad discretion that is not constrained by the usual Corporations Act jurisprudence on oppression or deadlocked boards.
Finally, the 14-day service rule in s 5(3) is expressed to apply “unless the appropriate court orders otherwise”. Ex-parte or short-service applications are therefore possible but require an explicit order displacing the default. Many practitioners assume the rule is absolute and miss the escape valve.
How to comply
Compliance begins before any order is made. An individual or entity that receives an application should immediately assess whether the 14-day service period can be shortened or extended and whether third-party interests (for example, business partners) require separate representation under s 5(4). Because hearsay can be admitted, early forensic challenges to the reliability of the applicant’s sources are essential; a formal notice disputing reliability should be served before the hearing.
If an order is made, the first task is to map every prohibition, restriction or requirement against the respondent’s existing patterns of life and business. Because orders can extend to “other provisions” the court considers appropriate (s 6(1)), seemingly innocuous requirements such as “must not engage in any business activity involving cash exceeding $5,000 per transaction” can have drastic cash-flow consequences. Legal advice should be obtained on whether any proposed term would breach the limits in s 6(2); if it does, that term is beyond power.
Once the order takes effect (on personal service), a compliance system must be instituted. For natural persons this usually involves a diary protocol, nominated contact officer, and regular internal audits. For corporations, a board resolution recording the order, delegation of monitoring responsibility, and staff training are prudent. Because contravention carries a five-year maximum prison term, strict liability means reasonable mistake is not a defence; therefore systems must be virtually fail-safe.
When circumstances change — a new job, a family member entering a prohibited class, or a business relocating — the respondent should promptly gather evidence of the “substantial change” required by s 12(2) and seek leave to apply for variation. Waiting until breach occurs is dangerous because the variation power is forward-looking only.
If the applicant alleges breach, the use-immunity in s 6(3) should be asserted immediately; any compelled material produced under the order cannot be deployed in the criminal prosecution unless the respondent has adduced it. Separate legal teams for the civil order and any criminal charge are advisable to preserve the immunity.
For corporate and partnership entities, compliance also requires monitoring the risk of a winding-up or dissolution application. Maintaining solvent trading, keeping accurate records, and ensuring that any s 8 prosecution is vigorously defended through all appeal levels are critical, because exhaustion of appeal rights is a jurisdictional precondition to compulsory winding-up (s 9(2)(b)).
Finally, organisations that routinely deal with high-risk individuals should maintain a register of all serious crime prevention orders served on staff, contractors or associates so that association prohibitions can be policed. Ignorance of the existence of an order binding another person is not a defence to a charge of facilitating a breach.
In all cases, the safest compliance posture is to treat the order as a statutory injunction whose terms must be read literally and whose protective purpose will colour any ambiguity in construction. Regular refresher advice from counsel familiar with the exact wording of the particular order is the only reliable way to stay on the right side of the five-year maximum penalty.
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) Notes included in this Act do not form part of this Act.
4 Meaning of “involved in serious crime related activity”
4 Meaning of “involved in serious crime related activity”
4 Meaning of “involved in serious crime related activity”
(1) For the purposes of this Act, a person is involved in serious crime related activity if—
(a) the person has engaged in serious crime related activity, or
(b) the person has engaged in conduct that has facilitated another person engaging in serious crime related activity, or
(c) the person has engaged in conduct that is likely to facilitate serious crime related activity (whether by the person or another person).
(2) In determining whether the conduct of a person has facilitated another person to engage in serious crime related activity, a court may take into account whether the conduct was reasonable in all the circumstances.
Part 2 Serious crime prevention orders
Part 2 Serious crime prevention orders
Part 2 Serious crime prevention orders
5 Making of serious crime prevention orders
5 Making of serious crime prevention orders
5 Making of serious crime prevention orders
(1) An appropriate court may, on the application of an eligible applicant, make an order (a serious crime prevention order) against a specified person if—
(a) in the case of a natural person—the person is 18 years old or older, and
(b) the court is satisfied that—
(i) the person has been convicted of a serious criminal offence, or
(ii) the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence (including by reason of being acquitted of, or not being charged with, such an offence), and
(c) the court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.
(2) If the ground relied on for an application for a serious crime prevention order against a person is that the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence by reason of an acquittal, the application must include the following information—
(a) the serious criminal offence of which the person was acquitted,
(b) the court in which the offence was tried,
(c) the date on which the person was acquitted.
(3) Unless the appropriate court orders otherwise, the applicant must serve a copy of the application on the person against whom the serious crime prevention order is sought at least 14 days before the hearing date for the application.
(4) The person against whom a serious crime prevention order is sought and any other person whose interests may be affected by the making of the order may appear at the hearing of the application and make submissions in relation to the application.
(5) In determining an application for a serious crime prevention order, the court may admit and take into account hearsay evidence despite any rule relating to the admission of hearsay evidence (whether under the Evidence Act 1995 or otherwise) if—
(a) the court is satisfied that the evidence is from a reliable source and is otherwise relevant and of probative value, and
(b) the person against whom the order is sought to be made has been notified of, and served with a copy of, the evidence before its admission.
(6) The applicant must ensure that a serious crime prevention order is served (whether by the applicant or another person) on the person against whom it is made. The order must be served by means of personal service.
6 Content of serious crime prevention order
6 Content of serious crime prevention order
6 Content of serious crime prevention order
(1) A serious crime prevention order may contain such prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.
(2) However, a serious crime prevention order cannot contain provisions that require a person—
(a) to answer questions or provide information orally, or
(b) to answer questions, or to provide documents or other information, that are subject to client legal privilege (legal professional privilege), or
(c) to disclose protected confidences (within the meaning of Division 1A of Part 3.10 of the Evidence Act 1995), or
(d) to provide documents or other information that is held by the person in confidence as part of a banking business unless—
(i) the person to whom the confidence is owed has consented, or
(ii) the order specifically requires the provision or production of the documents or other information concerned (or documents or other information of the kind concerned), or
(e) to answer questions, or to provide documents or other information, that would result in a disclosure prohibited by a provision of another Act (other than the Evidence Act 1995).
(3) Without limiting subsection (2), an answer given, or document or other information provided, by a person in compliance with a requirement of a serious crime prevention order (the compelled evidence) is not admissible as evidence against that person in civil or criminal proceedings other than—
(a) proceedings for an offence against section 8, or
(b) proceedings in which the person has adduced the compelled evidence.
7 Duration of serious crime prevention order
7 Duration of serious crime prevention order
7 Duration of serious crime prevention order
(1) A serious crime prevention order—
(a) takes effect when it is served on the person against whom it is made or on such later date as may be specified in the order, and
(b) once it takes effect, has effect for the period specified in the order.
(2) The period specified in a serious crime prevention order for its duration must not exceed a period of 5 years.
8 Offence: contravention of serious crime prevention order
8 Offence: contravention of serious crime prevention order
8 Offence: contravention of serious crime prevention order
A person against whom a serious crime prevention order is in effect must not contravene the order.
Maximum penalty—
(a) in the case of a corporation—1,500 penalty units, or
(b) in the case of a natural person—300 penalty units or imprisonment for 5 years, or both.
9 Winding up of voluntary corporation for contravening serious crime prevention orders
9 Winding up of voluntary corporation for contravening serious crime prevention orders
9 Winding up of voluntary corporation for contravening serious crime prevention orders
(1) An eligible applicant may apply to the Supreme Court for an order (a compulsory winding up order) requiring the winding up of a voluntary corporation that has been convicted of an offence against section 8.
(2) The Supreme Court may make a compulsory winding up order against a voluntary corporation if the Court is satisfied that—
(a) the corporation has been convicted of an offence against section 8, and
(b) there are no further avenues of appeal available to the corporation in respect of the conviction, and
(c) it is in the public interest, and just and equitable, for the corporation to be wound up.
(3) If a compulsory winding up order is made against an association, Part 6 of the Associations Incorporation Act 2009 is taken (subject to such modifications as may be prescribed by the regulations) to apply to the winding up of the association as if the Supreme Court had made an order under section 63 (1) (i) of that Act for its winding up.
(4) If a compulsory winding up order is made against a company, the winding up of the company pursuant to that order is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to Chapter 5 of the Corporations Act, subject to the following modifications—
(a) the order is taken to have effect for the purposes of the provisions as if the Supreme Court has made an order for the winding up of the company under section 461 (1) (k) of the Corporations Act,
(b) such other modifications as may be prescribed by the regulations.
Note—
Part 3 of the Corporations (Ancillary Provisions) Act 2001 provides for the application of provisions of the Corporations Act 2001 and Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth as laws of the State in respect of any matter declared by a law of the State (whether with or without modification) to be an applied Corporations legislation matter for the purposes of that Part in relation to those Commonwealth provisions. Section 14 (2) of the Corporations (Ancillary Provisions) Act 2001 ensures that a declaration made for the purposes of Part 3 of that Act only operates to apply a provision of the Corporations legislation to a matter as a law of the State if that provision does not already apply to the matter as a law of the Commonwealth. If a provision referred to in a declaration already applies as a law of the Commonwealth, nothing in the declaration will affect its continued operation as a law of the Commonwealth.
(5) Subsections (1), (2) and (4) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of Chapter 5 of the Corporations Act.
Note—
Section 5G of the Corporations Act enables a State to displace the operation of provisions of the Corporations legislation in favour of provisions of State laws that are declared under State law to be Corporations legislation displacement provisions for the purposes of that section. See, in particular, section 5G (4), (8) and (11) of the Corporations Act in relation to the displacements effected by this subsection.
(6) In this section—
association means an association registered under the Associations Incorporation Act 2009.
company means a company within the meaning of the Corporations Act.
(1) An eligible applicant may apply to the Supreme Court for an order (a compulsory dissolution order) requiring the dissolution of a partnership if the partnership has, or one or more of the partners have, been convicted of an offence against section 8.
Note—
The Partnership Act 1892 provides for incorporated limited partnerships. Incorporated limited partnerships are persons for the purposes of this Act because they are bodies corporate. See the definition of person in the Interpretation Act 1987.
(2) The Supreme Court may make a compulsory dissolution order against a partnership if the Court is satisfied that—
(a) the partnership has, or one or more of the partners have, been convicted of an offence against section 8, and
(b) there are no further avenues of appeal available to the partnership or partners in respect of the conviction or convictions, and
(c) it is in the public interest, and just and equitable, for the partnership to be dissolved.
(3) If a compulsory dissolution order is made against a partnership—
(a) in the case of an incorporated limited partnership—Schedule 1 to the Partnership Act 1892 is taken (subject to such modifications as may be prescribed by the regulations) to apply to the dissolution of the partnership as if the Registrar had published a conclusive certificate under clause 3 of that Schedule on the date the order takes effect that the partnership is required to be wound up, or
(b) in the case of any other partnership—Division 4 of Part 2 of the Partnership Act 1892 is taken (subject to such modifications as may be prescribed by the regulations) to apply to the dissolution as if the Supreme Court had made an order for dissolution under section 35 (f) of that Act.
(4) In this section—
incorporated limited partnership and Registrar have the same meaning as in the Partnership Act 1892.
s 10: Am 2023 No 7, Sch 3.7.
11 Right of appeal in relation to making of serious crime prevention order
11 Right of appeal in relation to making of serious crime prevention order
11 Right of appeal in relation to making of serious crime prevention order
(1) Each of the following persons may appeal to th
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