Criminal Organisations Control Amendment (Unlawful Associations) Act 2015

Criminal Organisations Control Amendment (Unlawful Associations) Act 2015

No. 48 of 2015

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of Criminal Organisations Control Act 2012

3New purpose inserted

4Definitions

5New Part 5A inserted

6Annual report

7Delegation

8Review of Act

Part 3—Amendment of Summary Offences Act 1966

9Repeal of section 49F (Consorting)

Part 4—Repeal of amending Act

10Repeal of amending Act

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Endnotes

1General information

SectionPage

Victoria

SectionPage

Criminal Organisations Control Amendment (Unlawful Associations) Act 2015[†]

No. 48 of 2015

[Assented to 13 October 2015]

Criminal Organisations Control Amendment (Unlawful Associations) Act 2015
No. 18 of 2015

The Parliament of Victoriaenacts:

Part 4—Repeal of amending Act

Criminal Organisations Control Amendment (Unlawful Associations) Act 2015
No. 48 of 2015

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to amend the Criminal Organisations Control Act 2012 to prohibit individuals associating with individuals convicted of serious criminal offences for the purpose of preventing the commission of offences; and

(b)to repeal the offence of consorting from the Summary Offences Act 1966.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 July 2016, it comes intooperation on that day.

Part 2—Amendment of Criminal Organisations Control Act 2012

3New purposeinserted

After section 1(b) of the Criminal Organisations Control Act 2012 insert—

"(ba) to prohibit individualsassociating with individuals convicted of serious criminal offences for the purpose of preventing the commission of offences; and".

4Definitions

In section 3(1) of the Criminal Organisations Control Act 2012 insert the following definitions—

"Adult Parole Board means the Adult Parole Board established under section 61 of the Corrections Act 1986;

convicted offender—see section 124D(1)(a);

family member has meaning given by section 8 of the Family Violence Protection Act 2008;

gazetted event or gathering means an event or gathering specified in an order under section124C;

health service has the same meaning as in the Health Practitioner Regulation National Law (Victoria);

lawful associationauthority means an authority granted under section 124B;

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

unlawful association notice means a notice issued under section 124D or 124E;".

5New Part 5A inserted

After Part 5 of the Criminal Organisations Control Act 2012 insert—

"Part 5A—Unlawful association

Division 1—Offences

124AAssociationwith individuals convicted of serious criminal offences prohibited

(1)An individual who has been servedan unlawful association noticemust not associate with anindividual specified in that notice (the specified individual)—

(a)on 3 or more occasions in a 3 month period; or

(b)on6 or more occasions in a 12 month period.

Penalty:Imprisonmentfor 3 years or 360penalty units or both.

(2) An offence against subsection (1) is an indictable offence.

(3) Subsection (1) does not apply if the individual served an unlawful association notice associates with the specified individual on an occasion as set out in that subsection and—

(a)those individuals are family members; and

(b)those individuals associate for a purpose that is not an ulterior purpose.

(4) Subsection (1) does not apply if the individual served an unlawful association notice associates with the specified individual on an occasion as set out in that subsection in any of the following ways and that association is not for an ulterior purpose—

(a) in the course of lawful employment or the lawful operation of a business;

(b) in the course of participating in education or vocational training;

(d) whileeither or both of them arebeing provided legal advice;

(e) whilein lawful custody or in the course of complying with an order, requirement or direction imposed by—

(i) a court; or

(ii) the Adult Parole Board; or

(iii) theSecretary to the Department of Justice and Regulation;

(f) for genuine political purposes, or in lawful protest or industrial action;

Note

See also section 11.

(g) in accordance with a lawful association authority granted to the individual;

(h) at a gazetted event or gathering.

(5) In this section—

ulterior purpose means—

(a) the purpose to avoid the application of subsection (1); or

(b)the purpose of planning, inciting or committing an offence; or

(c)the purpose of expanding an organisedcriminal group orcriminal network.

124BLawful association authority

(1)An individual who has been served an unlawful association notice may apply to the Chief Commissioner for authority to associate with an individualspecified in that notice (the specified individual) at an event or gathering (a lawful association authority).

(2) An application must specify—

(a)theapplicant's name and address; and

(b)details of the unlawful association notice that applies to the applicant; and

(c)the name of the specified individual with whom the applicant wishes to associate; and

(d)details of the event orgathering at which theapplicant wishes to associate with the specified individual; and

(e)the reasons why the applicant wishes to associate with the specified individual at the event or gathering.

(3)On receiving an application, the Chief Commissioner may—

(a)approve the application and grantalawful association authority to the applicant; or

(b)refuse to approve the application.

124CGazetted events or gatherings

The Chief Commissioner, by notice published in the Government Gazette, may specify a kind of, or a class of a kind of, event or gathering for the purposes of section124A(4)(h).

Division 2—Unlawful association notices

124D Issue of unlawful association notice

(1)A senior police officer may issue a noticein respect of an individualwho is 18 years old or olderif the senior police officer reasonably believes that—

(a) the individual has,on at least one occasion, associated with anindividual convicted of an applicable offence tried on indictment (a convicted offender); and

(b) the commission of an offence is likely to be prevented if those individuals are prevented from associating with each other.

(2)For the purposes of subsection (1)—

(a)an individual convicted of an applicable offence tried on indictment includes an individual convicted of such an offence on indictment before the commencement of section 5 of the Criminal Organisations Control Amendment (Unlawful Associations) Act 2015;and

(b)any association with a convicted offender by the individual on whom the notice will be served includes an association with the convicted offender before the commencement of that section.

(3) An unlawful association notice issued under subsection (1) must specify the convicted offender referred to in that subsection as an individual with whom the individual served the notice must not associate.

124EFurther related unlawful association notices

(1)This section applies if a senior police officer issues an unlawful association notice under section 124D(1) (aninitial notice).

(2) Subject to this section, the senior police officer must issue a notice in respect of each convicted offender specified in the initial notice.

(3) The senior police officer is not required to issue an unlawful association notice under subsection (2) if the officer considers that exceptional circumstances exist such thatthe issue of an unlawful association notice under that subsection is not required.

(4) An unlawful association notice issued under subsection (2) must specify the individual in respect of whom the initial notice was issued as the individual with whom the convicted offender must not associate.

(5) A senior police officer must not issue an unlawful association notice under subsection(2) in respect of a convicted offender who is under 18years old.

(6) An initial notice is not invalidated by reason only of the senior police officer not issuing an unlawful association notice under this section.

124FContent of unlawful association notices

An unlawful association noticemust—

(a)specify—

(i)the name and address of the individual on whom the notice will be served; and

(ii) the date of issue of the notice; and

(iii) thename of every individualrequired to be specified under section 124D(3) or 124E(4), as the case requires; and

(iv) the name, rank and place of duty of the senior police officer who issued the notice, or an identifying reference of that officer; and

(v) that the notice remains in effect for 3 years after the date it is served unless sooner revoked; and

(b) include—

(i)a statement explaining the effect of the notice and section 124A(1); and

(ii)information about the exceptionsto the offence undersection124A(1)that are set out in section 124A(3) and (4); and

(iii)a statement to the effect that an individual served with an unlawful association notice may apply under Division3 for an internal review of the decision to issue the notice; and

(iv)a statement to the effect that an individual served with an unlawful association noticeis entitled to apply for a lawful association authority.

124G Whenan unlawful association notice takes effect

An unlawful association notice takes effect on the day it is served on the individual in respect of whom it is issued.

124H Duration of an unlawful association notice

An unlawful association noticeremains in effect for 3 years after it is issued unless it is sooner revoked under section 124K or 124P.

124IService of unlawful association notice

A senior police officer must cause an unlawful association noticeto be served on the individual in respect of whom it is issued as soon as practicable after it is issued.

Note

For service, see Division 2 of Part 6.

124JAmendment of unlawful association notice to correct clerical errors or obvious defects

(1)A senior police officermay amend an unlawful association notice to correct a clerical error or an obvious defect in the notice.

(2)The senior police officer must—

(a)issue an amended unlawful association notice; and

(b)cause the amended noticeto be served on the individual on whom the initial unlawful association notice was served as soon as practicable after the decision to amend the notice.

Note

For service, see Division 2 of Part 6.

(3)An amended unlawful association notice must specify and include the things required under 124F with the necessary amendments.

(4)The period of effect of an unlawful association notice does not change because of the amendments made to it under this section.

124K Revocation of unlawful association notice

(1)A senior police officer, by written notice, may revoke an unlawful association notice.

(2)A notice under subsection (1) must specify—

(a)the name and address of the individual on whom the revoked unlawful association notice was served; and

(b)appropriate details that identify the revoked unlawful association notice; and

(c)the name, rank and place of duty of the senior police officer issuing the notice, or an identifying reference of that officer; and

(d)the date on which the notice is issued.

(3) The senior police officer must cause a notice under subsection (1) to be served on the individual on whom the revoked unlawful association notice was served as soon as practicable after the decision to revoke it.

Note

For service, see Division 2 of Part 6.

Division 3—Internal review of unlawful association notice decisions

124LDefinitions

In this Division—

original decision maker means the senior police officer who made the decision to issue or amend an unlawful association notice in relation to which an application has been made under section 124M;

reviewable decision—see section 124M(1);

reviewing officer means the senior police officer appointed under section124N(1).

124M Application for internal review

(1)An individualon whom an unlawful association notice is served may apply to the Chief Commissioner for a review of any of the following decisions (a reviewable decision)—

(a)adecision to issue anunlawful association notice;

(b)a decision to amend an unlawful association notice under section 124J.

(2)An application must be made within 28 days after being served the notice or the amended notice.

(3) An application must be in the form approved (in writing) by the Chief Commissioner.

124N Decision on internal review

(1) On receiving an application under section124M, the Chief Commissioner must appoint a senior police officer to review the reviewable decision.

(2) The reviewing officer—

(a)must not be the original decision maker or have been substantially involved in the making of the reviewable decision; and

(b)must be a police officer of the same rank as, or above the rank of, the original decision maker.

(3) The reviewing officer must, on review, make a fresh decision—

(a)thataffirms or amends the decision of the original decision maker to issue or amend the unlawful association notice; or

(b)thatsets aside the decision of the original decision maker to issue or amend the unlawful association notice and substitutes another decision that the reviewing officer considers appropriate.

(4) The reviewing officer must make a decision under subsection (3) within 28 days after the application is made.

(5) Without limiting subsection (3), the reviewing officer, on review, must consider all the information, material and evidence before the original decision maker.

(6)The reviewing officer must—

(a)advise the applicant, in writing, of the outcome of the officer's decision on review; and

(b)cause the reviewing officer's advice to be served on the applicant as soon as practicable after the decision.

Note

For service, see Division 2 of Part 6.

124O Amendment of unlawful association noticefollowing review

(1) This section applies if—

(a)a reviewing officer decides under section 124N to amend or set aside the decision of an original decision maker and substitute a different decision; and

(b)the effect of that decision is that the unlawful association notice be amended.

(2)The reviewing officer must—

(a)issue an amended unlawful association notice; and

(b)cause the amended noticeto be served on the individual on whom the initial unlawful association notice was served as soon as practicable after the decision.

Note

For service, see Division 2 of Part 6.

(3)An amended unlawful association notice must specify and include the things required under section 124F with the necessary amendments.

(4)The period of effect of an unlawful association notice does not change because of the amendments made to it under this section.

124PRevocation of unlawful association noticefollowing review

(1)This section applies if—

(a)a reviewing officer decides under section 124N to set aside the decision of an original decision maker and substitute a different decision; and

(b)the effect of that decision is that the unlawful association notice be revoked.

(2)The reviewing officer, by written notice, must revoke the unlawful association notice.

(3)In addition, the reviewing officer must review any related unlawful association notice and if necessary, by written notice, must revoke that notice.

(4) A notice under subsection (2) or (3) must specify—

(a)the name and address of the individual on whom the revoked unlawful association noticewas served; and

(b)appropriate details that identify the revoked unlawful association notice; and

(c)the name, rank and place of dutyof the reviewing officer issuing the notice, or an identifying reference of that officer; and

(d)the date on which the notice is issued.

(5) The reviewing officer must cause a notice under subsection (2) or (3) to be served on the individual on whom the revoked unlawful association noticewas served as soon as practicable after the decision.

Note

For service, see Division 2 of Part 6.

(6) In this section—

related unlawful association notice means an unlawful association notice under which the individual on whom the revoked unlawful association notice was served is an individual specified in the notice.

Note

See section 124E(4).

124Q Application for internal review does not stay effect of unlawful association notice

An application under section 124M does not stay the effect of the unlawful association notice issued under the decision that is the subject of an application under that section.".

6Annual report

(1)After section 133(1)(k) of the Criminal Organisations Control Act 2012 insert—

"(ka) the number of unlawful association notices issued during that financial year, including the number of notices issued in respect of Aboriginals;

(kb) details of the ages(in ranges) of individualsin respect of whom unlawful association notices were issued during that financial year;

(kc) the number of Aboriginals charged with an offence against section 124A(1) during that financial year;

(kd) details of the ages (in ranges) of individuals charged with an offence against section124A(1) during that financial year;

(ke) the number of lawful association authorities granted during that year;

(kf) the number of notices published under section 124C during that financial year;

(kg) the number of decisions of senior police officers set aside under Division 3 of Part5A;".

(2) After section 133(3) of the Criminal Organisations Control Act 2012 insert—

"(4) In this section—

Aboriginal has the same meaning as in the Charter of Human Rights and Responsibilities Act 2006.".

7Delegation

(1)In section 136(1) of the Criminal Organisations Control Act 2012, for "other than this power of delegation" substitute "except section 124B".

(2)After section 136(1) of the Criminal Organisations Control Act 2012 insert—

"(1A)The Chief Commissioner, by instrument, may delegate any function or power the Chief Commissioner has under section 124B to a senior police officer.".

8Review of Act

(1)For section 137(1) of the Criminal Organisations Control Act 2012 substitute—

"(1) The Attorney-General must cause a review to be undertaken of the operation and effectiveness of this Act during the report period.".

(2)After section 137(6) of the Criminal Organisations Control Act 2012 insert—

"(7)In this section—

report period means the period—

(a)beginning on this Act's commencement; and

(b) ending on the day that is 3 years after the day on which all of the amendments made by the Criminal Organisations ControlAmendment (UnlawfulAssociations) Act 2015are in operation.".

Part 3—Amendment of Summary Offences Act 1966

9Repeal of section 49F (Consorting)

Section 49F of the Summary Offences Act 1966 is repealed.

Part 4—Repeal of amending Act

10Repeal of amending Act

This Act is repealed on 1 July 2017.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes

Criminal Organisations Control Amendment (Unlawful Associations) Act 2015
No. 48 of 2015

Endnotes

1General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

[†] Minister's second reading speech—

Legislative Assembly: 2 September 2015

Legislative Council: 17 September 2015

The long title for the Bill for this Act was "A Bill for an Act to amend the Criminal Organisations Control Act 2012 to prohibit individuals associating with individuals convicted of serious criminal offences for the purpose of preventing the commission of offences and to repeal the offence of consorting from the Summary Offences Act 1966 and for other purposes."