Part 3BOffences relating to criminal organisations

Part 3B—Offences relating to criminal organisations Division 1—Participation in criminal organisation 83D—Interpretation criminal group—a group consisting of 2 or more persons is a criminal group if— (a) an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence of violence (or conduct that would, if engaged in within this State, constitute such an offence); or (b) an aim or activity of the group includes engaging in conduct, or facilitating engagement in conduct, constituting a serious offence (or conduct that would, if engaged in within this State, constitute such an offence) that is intended to benefit the group, persons who participate in the group or their associates; criminal organisation means— (a) a criminal group; or (b) a declared organisation; declared organisation has the same meaning as in the Serious and Organised Crime (Control) Act 2008; harm has the same meaning as in Part 3 Division 7A; participating in a criminal organisation includes (without limitation)— (a) recruiting others to participate in the organisation; and (b) supporting the organisation; and (c) committing an offence for the benefit of, or at the direction of, the organisation; and (d) occupying a leadership or management position in the organisation or otherwise directing any acts of the organisation; perverting the course of justice means obstructing, preventing, perverting or defeating the course of justice or the administration of the law; public officer means— (a) a person appointed to public office by the Governor; or (b) a judicial officer; or (c) a member of Parliament; or (d) a person employed in the Public Service of the State; or (e) a police officer; or (f) any other officer or employee of the Crown; or (g) a member of a State instrumentality or of the governing body of a State instrumentality or an officer or employee of a State instrumentality; or (h) a member of a local government body or an officer or employee of a local government body; or (i) a juror in any proceedings; or (j) a person who personally performs work for the Crown, a State instrumentality or a local government body as a contractor or as an employee of a contractor or otherwise directly or indirectly on behalf of a contractor; serious harm has the same meaning as in Part 3 Division 7A; serious offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more; serious offence of violence means a serious offence where the conduct constituting the offence involves— (a) the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person; or (b) serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or (c) perverting the course of justice in relation to any conduct that, if proved, would constitute a serious offence of violence as referred to in paragraph (a) or (b). (2) A group of people is capable of being a criminal group for the purposes of this Division whether or not— (a) any of them are subordinates or employees of others; or (b) only some of the people involved in the group are involved in planning, organising or carrying out any particular activity; or (c) membership of the group changes from time to time. 83E—Participation in criminal organisation (1) A person who participates in a criminal organisation— (a) knowing that, or being reckless as to whether, it is a criminal organisation; and (b) knowing that, or being reckless as to whether, his or her participation in that organisation contributes to the occurrence of any criminal activity, (2) A person who assaults another person, knowing that, or being reckless as to whether, he or she is, by that act, participating in a criminal activity of a criminal organisation, is guilty of an offence. Maximum penalty: Imprisonment for 20 years. (3) A person who destroys or damages property belonging to another person, or threatens to destroy or damage property belonging to another person, knowing that, or being reckless as to whether, he or she is, by that act, participating in a criminal activity of a criminal organisation, is guilty of an offence. Maximum penalty: Imprisonment for 20 years. (4) A person who assaults a public officer while in the execution of the officer's duty, knowing that, or being reckless as to whether, he or she is, by that act, participating in a criminal activity of a criminal organisation, is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (5) A term of imprisonment to which a person is sentenced for an offence against this section is cumulative on any other term of imprisonment or detention in a training centre that the person is liable to serve in respect of another offence (not being another offence against this section). (6) For the purposes of this section, an action is taken to be carried out in relation to a public officer while in the execution of the officer's duty, even though the public officer is not on duty at the time, if it is carried out— (a) as a consequence of, in retaliation for or otherwise in connection with actions undertaken by that public officer in the execution of the officer's duty; or (b) because the officer is a public officer. (7) For the purposes of this section, a person is presumed, in the absence of proof to the contrary, to be knowingly participating in an organisation at a particular time if the person is, at that time, displaying (whether on an article of clothing, as a tattoo or otherwise) the insignia of that organisation. (8) For the purposes of this section, a legal practitioner acting in the course of legal practice will be taken not to be participating in a criminal organisation or in an activity of a criminal organisation. 83F—Alternative verdicts If, on the trial of a person for an offence under section 83E(2), (3) or (4), the jury is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of an offence under section 83E(1), it may find the accused not guilty of the offence charged but guilty of an offence under section 83E(1), and the accused is liable to punishment accordingly. 83G—Evidentiary (1) If, in any criminal proceedings, the court is satisfied beyond reasonable doubt that a particular group was, at a particular time, a criminal group within the meaning of this Division, the court may, on the application of the Director of Public Prosecutions, make a declaration to that effect. (2) If a declaration is made in relation to a group under this section, that group will, for the purposes of any subsequent criminal proceedings, be taken to be a criminal group in the absence of proof to the contrary. Division 2—Public places, prescribed places and prescribed events 83GA—Preliminary (1) In this Division, unless the contrary intention appears— Committee means the Crime and Public Integrity Policy Committee of the Parliament; 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; criminal organisation means— (a) an organisation of 3 or more persons— (i) who have as their purpose, or 1 of their purposes, engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, serious criminal activity; and (ii) who, by their association, represent an unacceptable risk to the safety, welfare or order of the community; or (b) a declared organisation within the meaning of the Serious and Organised Crime (Control) Act 2008; or (c) an entity declared by regulation to be a criminal organisation; member, of an organisation, includes an associate member, or prospective member, however described; participant, in a criminal organisation, means— (a) if the organisation is a body corporate—a director or officer of the body corporate; or (b) a person who (whether by words or conduct, or in any other way) asserts, declares or advertises his or her membership of, or association with, the organisation; or (c) a person who (whether by words or conduct, or in any other way) seeks to be a member of, or to be associated with, the organisation; or (d) a person who attends more than 1 meeting or gathering of persons who participate in the affairs of the organisation in any way; or (e) a person who takes part in the affairs of the organisation in any other way, but does not include a lawyer acting in a professional capacity; prescribed event means an event declared by regulation to be a prescribed event; prescribed place means a place declared by regulation to be a prescribed place; public place means— (a) a place, or part of a place, that the public is entitled to use, is open to members of the public or is used by the public, whether or not on payment of money; or (b) a place, or part of a place, the occupier of which allows, whether or not on payment of money, members of the public to enter; recruit, a person, to become a participant in a criminal organisation, includes counsel, procure, solicit, incite and induce the person, including by promoting the organisation, to become a participant in the organisation; serious criminal activity has the same meaning as in the Serious and Organised Crime (Control) Act 2008. (2) Each regulation made under subsection (1) for the purposes of the definitions of criminal organisation, prescribed event or prescribed place and required to be laid before each House of Parliament in accordance with the Legislative Instruments Act 1978 may only relate to 1 entity, 1 event or 1 place (as the case may require). (3) The Governor may only make a regulation declaring an entity to be a criminal organisation for the purposes of paragraph (c) of the definition of criminal organisation in subsection (1) on the recommendation of the Minister. (4) A recommendation of the Minister in relation to an entity for the purposes of subsection (3) may only be made— (a) after the receipt of a report of the Committee in relation to the entity under section 83GB (and, in such a case, the recommendation must include a statement as to the opinion of the Committee on whether or not the entity should be declared a criminal organisation for the purposes of this Division); or (b) after the passage of 10 days after a referral in relation to the entity was made to the Committee by the Minister under section 83GB(1). (5) The Minister may, in deciding whether to make a recommendation for the purposes of subsection (3), have regard to the following matters: (a) if the Minister has received a report of the Committee in relation to the entity—the report of the Committee; (b) any information suggesting a link exists between the entity and serious criminal activity; (c) any convictions recorded in relation to— (i) current or former participants in the entity; or (ii) persons who associate, or have associated, with participants in the entity; (d) any information suggesting current or former participants in the entity have been, or are, involved in serious criminal activity (whether directly or indirectly and whether or not the involvement has resulted in any convictions); (e) any information suggesting participants in an interstate or overseas chapter or branch (however described) of the entity have as their purpose, or 1 of their purposes, organising, planning, facilitating, supporting or engaging in serious criminal activity; (f) any other matter the Minister considers relevant. (5a) No obligation to provide procedural fairness exists in relation to the making of a declaration by regulation that— (a) an entity is a criminal organisation for the purposes of paragraph (c) of the definition of criminal organisation in subsection (1); or (b) an event is a prescribed event for the purposes of the definition of prescribed event in subsection (1); or (c) a place is a prescribed place for the purposes of the definition of prescribed place in subsection (1). (6) Section 10A of the Legislative Instruments Act 1978 does not apply in relation to a regulation made under paragraph (c) of the definition of criminal organisation in subsection (1). (7) For the avoidance of doubt, nothing prevents the regulations declaring as a criminal organisation an entity that is, at the time of the declaration, based interstate or overseas and not operating in this State. (8) A change in the name or membership of a criminal organisation does not affect its status as a criminal organisation. (9) If the members of a criminal organisation (the original organisation) substantially re‑form themselves into another organisation, that organisation is taken to form a part of the original organisation (whether or not the original organisation is dissolved). 83GB—Report of Crime and Public Integrity Policy Committee (1) The Minister may, by notice in writing, refer a proposal to declare an entity to be a criminal organisation by regulation under paragraph (c) of the definition of criminal organisation to the Committee. (2) On receipt of a referral under subsection (1), the Committee must request the Commissioner of Police (the Commissioner) to provide to the Committee any information that the Commissioner thinks fit that may support the referral. (3) The Committee must inquire into and consider a referral under subsection (1) along with any supporting information provided by the Commissioner under subsection (2) and must report to the Minister on whether or not the Committee is of the opinion that the entity should be declared a criminal organisation for the purposes of this Division. (4) The Committee may include grounds for its opinion in a report under subsection (3). 83GC—Participants in criminal organisation being knowingly present in public places (1) Any person who is a participant in a criminal organisation and is knowingly present in a public place with 2 or more other persons who are participants in a criminal organisation commits an offence. 83GD—Participants in criminal organisation entering prescribed places and attending prescribed events (1) Any person who is a participant in a criminal organisation and enters, or attempts to enter, a prescribed place commits an offence. (2) Any person who is a participant in a criminal organisation and attends, or attempts to attend, a prescribed event commits an offence. 83GE—Participants in criminal organisation recruiting persons to become participants in the organisation (1) Any person who is a participant in a criminal organisation and recruits, or attempts to recruit, anyone to become a participant in a criminal organisation commits an offence. (3) This section does not apply in relation to a declared organisation within the meaning of the Serious and Organised Crime (Control) Act 2008. 83GF—Sentencing (1) Subject to subsection (2), but despite any other Act or law, the following provisions apply to the sentencing of a person for an offence under this Division: (a) a sentence of imprisonment must be imposed on the person; (b) the sentence of imprisonment cannot be suspended; (c) section 25 of the Sentencing Act 2017 does not apply; (d) section 26 of the Sentencing Act 2017 does not apply (but nothing in this subsection affects the operation of that section in respect of other offences for which the person is being sentenced). (2) A court sentencing a person for an offence under this Division may declare that subsection (1), in whole or part, does not apply to the person if he or she satisfies the court, by evidence given on oath, that exceptional circumstances exist in the particular case. (3) If a court finds that exceptional circumstances exist for the purposes of subsection (2), the court must give written reasons for so finding. (4) If a court is required to fix a non‑parole period in relation to the sentencing of a person for an offence under this Division— (a) the standard non‑parole period must be taken into account by the court in determining the appropriate sentence (without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence); and (b) if the court fixes a non‑parole period that is longer or shorter than the standard non‑parole period, the court must make a record of its reasons for so doing and must identify in the record of its reasons each factor that it took into account. (5) A requirement under subsection (4)(b) for a court to make a record of reasons for fixing a non‑parole period that is longer or shorter than a standard non‑parole period does not require the court to identify the extent to which the seriousness of the offence for which the non‑parole period is set differs from that of an offence to which the standard non‑parole period is referable. (6) A failure of a court to comply with subsection (4) does not invalidate a sentence. (7) In this section, standard non‑parole period— (a) is 9 months; and (b) represents the non‑parole period for an offence, being a first offence, in the middle of the range of objective seriousness for offences in this Division. 83GG—Evidentiary (1) If, in any criminal proceedings, the court is satisfied beyond reasonable doubt that a particular organisation was, at a particular time, a criminal organisation within the meaning of paragraph (a) of the definition of criminal organisation in section 83GA(1), the court may, on the application of the Director of Public Prosecutions, make a declaration to that effect. (2) If a declaration is made in relation to an organisation under subsection (1), then that organisation will, for the purposes of any subsequent criminal proceedings, be taken to be a criminal organisation (within the meaning of paragraph (a) of the definition of criminal organisation in section 83GA(1)) in the absence of proof to the contrary. Part 3BA—Street gangs Division 1—Preliminary 83GH—Interpretation child means a person under 18 years of age; close personal relationship has the same meaning as in Part 3 of the Family Relationships Act 1975; Commissioner means the Commissioner of Police; 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; Court means— (a) the Supreme Court; or (b) in proceedings under Division 3, the Youth Court if— (i) the respondent is a child at the time the application initiating the proceedings is made; or (ii) the proceedings relate to the variation or revocation of a street gang control order made by the Youth 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 street gang means a group subject to a declaration under Division 2; interim street gang control order means an order under section 83GU; participant, in a street gang or other group, means a person who— (a) asserts, declares or advertises their membership of, or association with, the group (whether by words or conduct, or in any other way); or (b) seeks to be a member of, or to be associated with, the group (whether by words or conduct, or in any other way); or (c) with the intention of engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, criminal activity— (i) attends more than 1 meeting or gathering of persons who participate in the affairs of the group in any way; or (ii) takes part in the affairs of the group in any other way, but does not include a lawyer acting in a professional capacity; recruit a person, to become a participant in a street gang, includes counsel, procure, solicit, incite and induce the person, including by promoting the street gang, to become a participant in the street gang; respondent means, according to the context— (a) a person in relation to whom an application for a street gang control order has been made (see section 83GT); or (b) a person who is subject to a street gang control order; serious criminal activity means the commission of serious offences; serious offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more; spouse—a person is the spouse of another if they are legally married; street gang means— (a) a group consisting of 3 or more persons— (i) who have as their purpose, or 1 of their purposes, engaging in, organising, planning, facilitating, supporting, or otherwise conspiring to engage in, serious criminal activity; and (ii) who, by their association, represent an unacceptable risk to the safety, welfare or order of the community; or (b) a declared street gang; street gang control order means an order under section 83GT. (2) A change in the name of, or the persons who are participants in, a street gang does not affect its status as a street gang under this Part. (3) If the participants in a street gang (the original group) substantially re‑form themselves into another group, that organisation is taken to form a part of the original group (whether or not the original group is dissolved). (4) For the purposes of this Part— (a) a person may associate with another person by any means including communicating with that person by letter, telephone or facsimile or by email or other electronic means; and (b) a person is a close family member of another person if— (i) 1 is a spouse or former spouse of the other or is, or has been, in a close personal relationship with the other; or (ii) 1 is a parent or grandparent of the other (whether by blood or by marriage); or (iii) 1 is a brother or sister of the other (whether by blood or by marriage); or (iv) 1 is a guardian or carer of the other. Division 2—Declared street gangs 83GI—Commissioner may apply for declaration (1) The Commissioner may apply to the Court for a declaration under this Division in relation to a group. (2) The application must— (a) be in writing; and (b) identify the particular group in respect of which the declaration is sought; and (c) describe the nature of the group and any of its distinguishing characteristics; and (d) set out the grounds on which the declaration is sought; and (e) set out the information supporting the grounds on which the declaration is sought; and (f) set out details of any previous application for a declaration in respect of the group and the outcome of that application; and (g) be supported by at least 1 affidavit from a police officer, verifying the contents of the application. (3) The application may identify the group by specifying the name of the group or the name by which the group is commonly known or by providing other particulars identifying the group. (4) Subject to subsection (5), the Commissioner must make a copy of an application under this section, and any affidavit supporting the application, available for inspection by— (a) any person who satisfies the Commissioner that they are representative of the group; and (b) any person who is alleged in an affidavit supporting the application to be a participant or former participant in the group; and (c) any person who satisfies the Commissioner that they are a participant or former participant in the group or other person who may be directly affected (whether or not adversely) by the outcome of the application; and (d) any other person whom the Court considers should be provided with an opportunity to inspect the application and supporting affidavits. (5) Nothing in subsection (4) authorises or requires the disclosure of information properly classified by the Commissioner as criminal intelligence. 83GJ—Publication of notice of application (1) If the Commissioner makes an application under section 83GI in relation to a group, the Commissioner must as soon as practicable publish a notice in the Gazette and a newspaper circulating generally throughout the State— (a) specifying that an application has been made for a declaration under this Division in respect of the group; and (b) specifying that there may be serious consequences for participants in the group and other persons if the declaration is made; and (c) advising interested parties of their rights in relation to making or providing submissions to the Court at the hearing of the application; and (d) specifying the manner in which interested parties may inspect or apply to inspect a copy of the application; and (e) specifying the date, time and place of the hearing. interested party, in relation to an application, means an organisation, group or person who would, under section 83GO, be entitled to make an oral submission or provide a written submission to the Court at the hearing of the application. 83GK—Court may make declaration (1) The Court may make a declaration on an application made under this Division in relation to a group if satisfied that— (a) participants in the group associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and (b) participants in the group, by their association, represent an unacceptable risk to the safety, welfare or order of the community. (2) In considering whether or not to make a declaration, the Court may have regard to the following: (a) information suggesting that a link exists between the group and serious criminal activity; (b) any convictions recorded against— (i) current or former participants in the group; or (ii) persons who associate, or have associated, with participants in the group; (c) information suggesting that— (i) current or former participants in the group; or (ii) persons who associate, or have associated, with participants in the group, have been, or are, involved in serious criminal activity, whether directly or indirectly and whether or not the involvement resulted in convictions; (d) information suggesting that participants in an interstate or overseas chapter or branch of the group (however described) associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; (e) anything else the Court considers relevant. (3) 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. (4) Participants in a group may associate for the purposes of this section in any manner including merely by being participants in the group. (5) The Court may, for the purposes of making the declaration, be satisfied that participants in the group associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity— (a) whether all the participants associate for that purpose or only some of the participants; and (b) whether participants associate for that purpose in relation to the same serious criminal activity or different serious criminal activity; and (c) whether or not the participants also associate for other purposes. 83GL—Notice of declaration (1) As soon as practicable after the making of a declaration under this Division, the Commissioner must publish notice of the declaration— (a) in the Gazette; and (b) in a newspaper circulating generally throughout the State; and (c) on a website maintained by the Commissioner. (2) Unless the Court otherwise directs, the declaration is of no effect until notice of it is published under subsection (1)(a) and (b). 83GM—Duration of declaration A declaration made under this Division remains in force unless and until it is revoked in accordance with this Division. 83GN—Revocation of declaration (1) The Court may, at any time, revoke a declaration made under this Division in relation to a group on application— (a) by the Commissioner; or (b) by— (i) the group; or (ii) a person who made or provided submissions in relation to the application for the declaration; or (iii) with the permission of the Court— (A) any other participant or former participant in the group or person directly affected (whether or not adversely) by the declaration; or (B) any other person whom the Court considers should, in the interests of justice, be entitled to make the application. (2) An application may not be made under subsection (1)(b) except with the permission of the Court if— (a) an application has been made in relation to the group under that paragraph (whether by the same or a different applicant) within the preceding period of 12 months; or (b) an application has been made in relation to the group under that paragraph (whether by the same or a different applicant) and that application has not been finally determined. (3) An application under subsection (1) must— (a) be in writing; and (b) set out the grounds on which revocation is sought; and (c) set out the information supporting the grounds on which revocation is sought; and (d) be supported by at least 1 affidavit from the applicant verifying the contents of the application. (4) If an application is made under subsection (1)(b), the applicant must, as soon as practicable, serve on the Commissioner a copy of the application and any supporting affidavit. (5) If an application is made under subsection (1), the Commissioner must, as soon as practicable, publish a notice in the Gazette and a newspaper circulating generally throughout the State— (a) specifying that an application has been made for revocation of a declaration under this Division in respect of the group; and (b) advising interested parties of their rights in relation to making or providing submissions to the Court at the hearing of the application; and (c) specifying the manner in which interested parties may inspect or apply to inspect a copy of the application; and (d) specifying the date, time and place of the hearing. (6) A declaration may be revoked on an application under subsection (1) if the Court is satisfied that, as at the time at which the application for revocation is made and heard, there would not be grounds for the making of a declaration in relation to the group. (7) The Commissioner must, as soon as practicable after a declaration is revoked— (a) make reasonable efforts to give notice of the revocation to any person who made or provided a submission in relation to the making of the declaration; and (b) publish notice of the revocation in the Gazette and in a newspaper circulating generally throughout the State. (8) In this section— interested party, in relation to an application, means an organisation or person who would, under section 83GO, be entitled to make an oral submission or provide a written submission to the Court at the hearing of the application. 83GO—Procedure at hearings (1) At the hearing of an application under this Division, the following are entitled to make oral submissions, personally or through a legal representative, to the Court and, with the permission of the Court, to provide, in accordance with any requirements of the Court, written submissions: (a) the Commissioner; (b) the group to which the application relates; (c) any person who is alleged in an affidavit supporting the application to be a participant or former participant in the group; (d) any person who is a participant or former participant in the group or other person who may be directly affected (whether or not adversely) by the outcome of the application; (e) any other person whom the Court considers should, in the interests of justice, be entitled to make submissions. (2) A person referred to in subsection (1) who is not the applicant (an interested party) may, in accordance with any requirements of the Court, file with the Court 1 or more affidavits in response to the application. (3) The applicant may, with the permission of the Court, file with the Court 1 or more affidavits in response to any affidavit filed by an interested party. (4) At the hearing of an application under this Division, the applicant or an interested party may adduce oral evidence, or cross‑examine a person who has given oral evidence or provided an affidavit, if the Court considers, on application, or on its own initiative, that it is in the interests of justice to permit the evidence or the cross‑examination. (5) If the applicant or an interested party applies to adduce oral evidence or cross‑examine a person who has given oral evidence or provided an affidavit, the Court may, before deciding whether to allow the evidence or to allow the cross‑examination, require the applicant or interested party to file a notice of contention specifying fully and in detail the grounds on which the application is made. 83GP—Making of subsequent declaration For the avoidance of doubt, nothing prevents the making of a declaration in relation to a group that has been the subject of a previous declaration which has been revoked. 83GQ—Practice and procedure In proceedings under this Division, the Court— (a) is not bound by the rules of evidence but may inform itself on any matter as it thinks fit; and (b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. 83GR—Appeal The commencement of an appeal under the Supreme Court Act 1935 against a declaration made under this Division does not, of itself, affect the operation of the declaration to which the appeal relates. 83GS—Evidentiary In any proceedings before a court, an apparently genuine document purporting to be signed by the Commissioner and to certify that a specified group was, on a specified date, a declared street gang constitutes, in the absence of proof to the contrary, proof of the matter so certified. Division 3—Street gang control orders 83GT—Court may make street gang control order (1) The Commissioner may apply to the Court for the making of a street gang control order relating to a person (the respondent). (2) The Court may, on application by the Commissioner, make a street gang control order relating to the respondent if the Court is satisfied that— (a) the respondent is a participant in a street gang; or (b) the respondent— (i) has been a participant in a group that is, at the time of the application, a declared street gang; and (ii) associates with 1 or more participants in a street gang; or (c) the respondent has engaged in serious criminal activity with 1 or more participants in a street gang, and that the making of the order is appropriate in the circumstances. (3) In proceedings under this section— (a) the Commissioner and the respondent are parties to the proceedings; but (b) the Court may, if satisfied that the application has been served on the respondent, hear and determine the proceedings whether or not the respondent chooses to participate in the hearing. (4) If the Commissioner requests the making of an interim street gang control order without notice to the respondent under section 83GU, the Court may order that service of the application (and any material to be served with the application) on the respondent under this section be delayed until the Court has determined that request. (5) A street gang control order may prohibit the respondent from any 1 or more of the following: (a) subject to subsection (7), associating with a specified person or persons of a specified class; (b) holding an authorisation to carry on a prescribed activity while the street gang control order remains in force; (c) subject to subsection (7), being present at, or being within a specified distance of, a specified place or premises or a place or premises of a specified class; (d) possessing a specified article or weapon, or articles or weapons of a specified class; (e) carrying on their person more than a specified amount of cash; (f) using for communication purposes, or being in possession of, a telephone, mobile phone, computer or other communication device except as may be specified; (g) engaging in other conduct of a specified kind that the Court considers could be relevant to the commission of serious offences. (6) In determining an application for a street gang control order, the Court may have regard to the following: (a) the likelihood that the respondent will engage in serious criminal activity if they are not subject to an order; (b) if the application relates to a declared street gang, any evidence before the Court as to the reasons given by the court for the making of the declaration under section 83GK; (c) the extent to which the order might assist in preventing the respondent from participating or further participating in a street gang; (d) the prior criminal record (if any) of the respondent and any person specified in the application as a person with whom the respondent associates or has associated; (e) any legitimate reason the respondent may have for associating with any person specified in the application; (f) any other matter that, in the circumstances of the case, the Court considers relevant. (7) In determining whether to make a street gang control order prohibiting conduct of a kind referred to in subsection (5)(a) or (c), the Court— (a) must have regard to the extent to which such an order may affect the respondent's connection with their family and culture; and (b) must not prohibit the respondent from associating with a close family member unless the Court considers it necessary to prevent the respondent from engaging in serious criminal activity. (8) If the Court prohibits a respondent from holding an authorisation to carry on a prescribed activity— (a) any such authorisation held by the respondent is revoked from the date on which the street gang control order takes effect or a later date specified by the Court; and (b) if the revocation is to take effect on a later date—the Court may impose any further prohibition it thinks fit on the respondent in relation to the conduct of the activity to which the authorisation relates until the revocation takes effect; and (c) the revocation is effected despite any other Act or any law, award or industrial or other agreement affecting the employment of the respondent, and neither the Crown nor the authority that issues an authorisation incurs any liability because of the revocation. (9) In this section— authorisation includes the licensing, registration, approval, certification or any other form of authorisation 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 an occupation or activity of a kind prescribed by regulation for the purposes of this definition. 83GU—Interim street gang control orders (1) The Court may, on an application under section 83GT, make an interim street gang control order if the Court is satisfied that it is appropriate to do so in all of the circumstances. (2) An interim street gang control order— (a) may be made without notice to the respondent; and (b) may include any prohibition that may be included in a street gang control order. (3) Section 83GT(8) applies in relation to an interim street gang control order as if it were a street gang control order. 83GV—Duration of street gang control order or interim street gang control order (1) A street gang control order or interim street gang control order takes effect— (a) if the respondent or a legal representative of the respondent is present when the order is made—on the making of the order; or (b) otherwise—when the Commissioner serves the order on the respondent. (2) Service under subsection (1)(b) must be by personal service. (3) Subject to section 83GZ, a street gang control order remains in force— (a) for a period of 2 years or for such lesser period as may be specified in the order; or (b) until the order is revoked in accordance with section 83GW, (whichever occurs first). (4) Subject to sections 83GX and 83GZ, an interim street gang control order remains in force for a period of 6 months or for such lesser period as may be specified in the order. (5) Nothing prevents the Commissioner from applying for a further street gang control order or interim street gang control order in respect of a respondent. 83GW—Variation or revocation (1) The Court may make an order varying a street gang control order (a variation order) or revoking a street gang control order (a revocation order) on application— (a) by the Commissioner; or (b) by the respondent. (2) An application may only be made under subsection (1)(b) with the permission of the Court. (3) Subject to this section, in proceedings for the variation or revocation of a street gang control order— (a) the Commissioner and the respondent are parties to the proceedings; but (b) in the case of an application under subsection (1)(a), the Court may, if satisfied that the application has been served on the respondent, hear and determine the proceedings whether or not the respondent chooses to participate in the hearing. (4) The Court may make an interim variation order if the Court is satisfied that it is appropriate to do so in all of the circumstances. (5) An interim variation order— (a) may be made without notice to the respondent; and (b) remains in force until further order of the Court. (6) In determining an application under this section the Court— (a) may have regard to the same matters that the Court may have regard to in determining an application for a street gang control order; and (b) must, before prohibiting conduct of a kind referred to in section 83GT(5)(a) or (c), comply with section 83GT(7) in the same way as the Court must in determining an application for a street gang control order. (7) If a revocation order is made, or a variation order is made on application under subsection (1)(b), the revocation or variation order has effect immediately on the making of the order or at such later time as may be specified by the Court in making the order. (8) If a variation order or interim variation order is made on application under subsection (1)(a), the order has effect— (a) if the respondent or a legal representative of the respondent is present when the variation order or interim variation order is made—on the making of the order; or (b) otherwise—when the Commissioner serves the order on the respondent. (9) Service under subsection (8)(b) must be by personal service. 83GX—Right to object if interim order made ex parte (1) This section only applies if an interim street gang control order or interim variation order has been made without notice to the respondent. (2) The respondent may, within 14 days of service of the interim street gang control order or interim variation order or such longer period as the Court may allow, lodge a notice of objection with the Court. (3) A copy of the notice of objection must be served by the respondent on the Commissioner by registered post. (4) The Court may, on hearing a notice of objection, confirm, vary or revoke the interim street gang control order or interim variation order. 83GY—Consequential and ancillary orders (1) The Court may, on making a street gang control order or variation order or an interim street gang control order or variation order, make any consequential or ancillary orders it thinks fit, including, in a case where the order prohibits the possession of an article or weapon or an article or weapon of a specified class, orders— (a) providing for the surrender or confiscation of the article or weapon or such an article or weapon; and (b) if the circumstances of the case so require, authorising a police officer— (i) to enter and search and, if necessary, use reasonable force to break into or open— (A) premises or a vehicle in which the article or weapon, or such an article or weapon, is suspected to be; or (B) part of, or anything in or on, premises or a vehicle in which the article or weapon, or such an article or weapon, is suspected to be; and (ii) to take possession of the article or weapon, or such an article or weapon. (2) An article or weapon surrendered or confiscated under subsection (1) is forfeited to the Crown and may be sold or disposed of as the Minister thinks fit unless the Court orders that the article or weapon is to be returned to the respondent when the street gang control order or interim street gang control order lapses or is revoked. 83GZ—Automatic revocation of order Without derogating from any power of the Court under this Part, if a street gang control order or interim street gang control order is made in relation to a person in reliance on the person's participation in a particular declared street gang or the person's association with a participant in a particular declared street gang, the order is revoked if the declaration that declares the street gang ceases to be in force. 83GZA—Application of Division to children (1) Subject to this section, this Division applies in relation to a child in the same way as it applies to an adult. (2) A street gang control order may not be made in relation to a child who is under 14 years of age. (3) If a street gang control order relating to a child is made, varied or revoked, the Commissioner must, as soon as reasonably practicable, give written notice of the making of the order or of the variation or revocation (as the case may be) to— (a) a parent or guardian of the child, if the Commissioner is able to find a parent or guardian of the child after making reasonable attempts; and (b) any other prescribed person or person of a prescribed class. (4) The following provisions apply in relation to proceedings under this Division for the making, variation or revocation of a street gang control order relating to a child: (a) section 13 of the Young Offenders Act 1993 applies to the proceedings as if they were an action or proceedings taken against a youth by a police officer or a family conference under Part 2 of that Act; (b) the Court must satisfy itself that the child understands the nature of the proceedings; (c) if the child is not represented by counsel or solicitor, the Court— (i) must explain to the child in simple language any allegations being made against the child in the proceedings, the nature of the proceedings and the legal implications of the order being sought in the proceedings; and (ii) must provide the child with a written statement in a form approved by the Attorney-General of the child's rights in respect of legal representation and of the way to proceed in order to obtain legal advice, representation or assistance. Division 4—Offences 83GZB—Offence to contravene or fail to comply with street gang control order (1) A person who contravenes or fails to comply with a street gang control order or interim street gang control order is guilty of an offence. Maximum penalty: imprisonment for 5 years. (2) A person does not commit an offence against this section in respect of an act or omission unless the person knew that the act or omission constituted a contravention of, or failure to comply with, the order or was reckless as to that fact. 83GZC—Offence to recruit persons to become participants in street gang A person who is aged 18 years or more who— (a) is a participant in a street gang; and (b) recruits, or attempts to recruit, another person to become a participant in a street gang, (a) if the person recruited, or attempted to have been recruited, was under the age of 18 years at the time of the offence—imprisonment for 5 years; (b) in any other case—imprisonment for 3 years. 83GZD—Participants in street gang entering prescribed places and attending prescribed events (a) is a participant in a street gang or is subject to a street gang control order; and (b) enters, or attempts to enter, a prescribed place, commits an offence. Maximum penalty: imprisonment for 3 years. (a) is a participant in a street gang or is subject to a street gang control order; and (b) attends, or attempts to attend, a prescribed event, commits an offence. Maximum penalty: imprisonment for 3 years. prescribed event means an event that is a prescribed event under Part 3B Division 2; prescribed place means a place that is a prescribed place under Part 3B Division 2. 83GZE—Criminal associations (1) A person to whom this section applies who associates, on not less than 6 occasions during a period of 12 months, with another person to whom this section applies is guilty of an offence. Maximum penalty: imprisonment for 2 years. (2) This section applies in relation to the following persons: (a) a person who is a participant in a street gang; (b) a person subject to a street gang control order; (c) a person who is a participant (within the meaning of Part 3B Division 2) in a criminal organisation; (d) a member (within the meaning of the Serious and Organised Crime (Control) Act 2008) of a declared organisation; (e) a person subject to a control order under the Serious and Organised Crime (Control) Act 2008. (3) A person does not commit an offence against subsection (1) unless, on each occasion on which it is alleged that the person associated with another, the person knew that the other person was a person of a kind referred to in subsection (2) or was reckless as to that fact. (4) A person may be guilty of an offence against subsection (1) in respect of associations with the same person or with different people. (5) The following forms of associations will be disregarded for the purposes of this section unless the prosecution proves that the association was not 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 prescribed kind between persons enrolled in the course; (d) associations occurring at a rehabilitation, counselling or therapy session of a prescribed kind; (e) associations occurring in lawful custody or in the course of complying with a court order; (f) associations of a prescribed kind. (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) If a police officer has reasonable cause to suspect that 2 people are or have been associating with each other and that at least 1 of those people is a person of a kind referred to in subsection (2), the police officer may require 1 or both of those people to state all or any of their personal details. (8) In this section— criminal organisation has the same meaning as in Part 3B Division 2; declared organisation has the same meaning as in the Serious and Organised Crime (Control) Act 2008. Division 5—Miscellaneous 83GZF—Appeal The commencement of an appeal under the Supreme Court Act 1935 against an order made under this Part does not, of itself, affect the operation of the order to which the appeal relates. 83GZG—Evidentiary (1) Subject to this section, in any proceedings under this Part— (a) transcripts of evidence or documents tendered in evidence, or material otherwise relied on by a court, in proceedings in which a person has been convicted of an offence; and (b) evidence or documents relating to the factual basis on which a person was convicted and sentenced for an offence, will be admissible, and the court may draw any conclusions of fact that it considers proper from the evidence, document or other material. (2) Section 58 of the Young Offenders Act 1993 applies in relation to proceedings under this Part for the making, variation or revocation of a street gang control order as if they were proceedings for an offence. (3) Subject to this section, in any proceedings under this Part, an apparently genuine document purporting to be a police record of a person's antecedents (including any records of admissions of guilt on the basis of which a youth was dealt with by a police officer or family conference under the Young Offenders Act 1993 that are admissible under subsection (2)) or criminal history will be admissible without further proof as evidence of the facts referred to in the document, or to be inferred from the document. (4) An affidavit of a police officer of or above the rank of superintendent will be admissible in evidence for the purpose of proving that evidence, a document or other material is of a kind referred to in subsection (1) or (3)). (5) Evidence, a document or other material will not be admitted in evidence under subsection (1) or (3) if the court is of the opinion— (a) that the person by whom, or at whose direction, the evidence, document or material was prepared can and should be called by the party tendering the evidence, document or material to give evidence of the matters contained in the evidence, document or material; or (b) that the evidentiary weight of the evidence, document or material is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the evidence, document or material in evidence; or (c) that it would be otherwise contrary to the interests of justice to admit the evidence, document or material in evidence. (6) In any proceedings under this Part, an apparently genuine document purporting to be remarks made by a court in— (a) sentencing a person for an offence; or (b) giving reasons for upholding or dismissing an appeal— (i) against a sentence for an offence; or (ii) against a conviction for an offence where the conviction is upheld, as to the facts which the court accepts or finds to have been established in the proceedings for the offence will be admissible without further proof, if relevant to an issue in the proceedings, as evidence of those facts. (7) In determining whether to admit any material in evidence under this section, the court may receive evidence by affidavit of any matter pertaining to the admission of that material. (8) For the purpose of determining the evidentiary weight, if any, of material admitted in evidence under this section, consideration may be given to the source from which the material was produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters. (9) Nothing in this section limits the material that might be admissible in proceedings under this Part. 83GZH—Standard of proof (1) Any question of fact to be decided by a court in proceedings under this Part is to be decided on the balance of probabilities. (2) This section does not apply in relation to proceedings for an offence against this Part. 83GZI—Evidence in other proceedings (1) If, in any criminal proceedings, the court is satisfied beyond reasonable doubt that a particular group was, at a particular time, a street gang within the meaning of paragraph (a) of the definition of street gang in section 83GH(1), the court may, on the application of the Director of Public Prosecutions, make a declaration to that effect. (2) If a declaration is made in relation to a group under subsection (1), then that group will, for the purposes of any subsequent criminal proceedings, be taken to be a street gang (within the meaning of paragraph (a) of the definition of street gang in section 83GH(1)) in the absence of proof to the contrary. 83GZJ—Service (1) If a police officer has reasonable cause to suspect that a person is someone on whom an application, order or other document is required to be served by personal service under this Part, the officer may— (a) require the person to state all or any of the person's personal details; and (b) require the person to remain at a particular place for— (i) so long as may be necessary for the order to be served on the person; or (ii) 2 hours, whichever is the lesser; and (c) if the person refuses or fails to comply with a requirement under a preceding paragraph, or the officer has reasonable cause to suspect that the requirement will not be complied with, arrest and detain the person in custody (without warrant) for the period referred to in paragraph (b). (2) If a person has been required to remain at a particular place in accordance with subsection (1)(b), personal service of a photocopy, faxed copy or printed electronic copy of the application, order or other document will be taken to be personal service of the application, order or other document on the person. (3) If the person serving an application, order or other document which is required, under this Part, to be served on a person by personal service— (a) has reasonable cause to believe that the person is present at any premises; but (b) is unable to gain access to the person at the premises for the purpose of effecting personal service, the application, order or other document may be served on the person by— (c) leaving it for the person at the premises with someone apparently over the age of 16 years; or (d) if the person serving the order is unable to gain access to such a person at the premises—affixing it to the premises at a prominent place at or near to the entrance to the premises. (4) A court dealing with any proceedings under this Part may make such orders as to service of an application, order or other document relating to the proceedings as it thinks fit. 83GZK—Representation of unincorporated group (1) A group that is an unincorporated group may, in proceedings under this Part, be represented in the proceedings by a person who satisfies the court dealing with the proceedings that they are an appropriate representative of the group or a part of the group. (2) A person referred to in subsection (1) may be represented by legal counsel in the proceedings. 83GZL—Costs (1) Each party to proceedings on an application under this Part must bear the party's own costs for the proceedings. (2) However, the Court may award costs against a party who has— (a) made an application the court considers frivolous or vexatious; or (b) by an unreasonable act or omission, caused another party to incur costs in connection with the proceedings. (3) If proceedings are delayed through the neglect or incompetence of a representative, the Court may, at the conclusion of those proceedings— (a) disallow the whole or part of the costs as between the representative and his or her client (and, where appropriate, order the representative to repay costs already paid); or (b) order the representative to indemnify his or her client or any other party to the proceedings for costs resulting from the delay; or (c) order the representative to pay to the registrar of the Court for the credit of the Consolidated Account an amount fixed by the Court as compensation for time wasted. (4) This section does not apply in relation to proceedings for an offence against this Part. 83GZM—Presumption as to participation For the purposes of any proceedings under this Part, a person is presumed, in the absence of proof to the contrary, to be a participant in a street gang at a particular time if the person is, at that time, displaying (whether on an article of clothing, as a tattoo or otherwise) a logo, sign, identifier, mark or symbol that identifies and is distinctive to the group. It is intended that a flag referred to in or appointed under the Flags Act 1953 of the Commonwealth, the national flag of another country or the flag of a State or Territory of the Commonwealth, is not to be distinctive to a street gang or other group for the purposes of this section unless it is displayed with modification, or in a particular manner or context, so as to be distinctive to the group. 83GZN—Criminal intelligence (1) In any proceedings under this Part before a court, the court— (a) 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 (b) 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. (2) The duties imposed on a court by subsection (1) in relation to proceedings under this Part apply to any court dealing (whether on an appeal under this, or another, Act or otherwise) with information properly classified under this Part as criminal intelligence or with the question of whether information has been properly classified under this Part by the Commissioner as criminal intelligence. 83GZO—Use of evidence or information for purposes of Act (1) Despite any other Act or law, evidence or information obtained by the lawful exercise of powers under an Act or law (whether before or after the commencement of this section) and evidence or information obtained incidentally to such an exercise of powers— (a) may be used by law enforcement and prosecution authorities for the purposes of this Part; and (b) is not inadmissible in proceedings under this Part merely because the evidence or information was not obtained for the purposes of this Part. (2) Despite any other Act or law, information (whether obtained before or after the commencement of this section) properly classified by the Commissioner as criminal intelligence— (a) may be used by law enforcement and prosecution authorities for the purposes of this Part; and (b) may be admitted in evidence or otherwise used in proceedings under this Part. (3) No civil or criminal liability lies against a person in respect of any use of evidence or information permitted by this section. 83GZP—Delegation The Commissioner— (a) may not delegate the function of classifying information as criminal intelligence for the purposes of this Part except to a Deputy Commissioner or Assistant Commissioner of Police; and (b) may not delegate any other function or power of the Commissioner under this Part except to a senior police officer.