Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld)
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Queensland Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Act No. 45 of 2013
Queensland Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Contents Part 1 1 Part 2 2 3 4 Part 3 5 6 7 8 9 10 11 Page Preliminary Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Amendment of Bail Act 1980 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Amendment of s 6 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Amendment of s 16 (Refusal of bail) . . . . . . . . . . . . . . . . . . . . . . 10 Amendment of CrimeandMisconductAct2001 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Replacement of ch 2, pt 2 hdg (Major crime) . . . . . . . . . . . . . . . . 12 Replacement of ch 2, pt 2, div 1 hdg (Major crime function) . . . . 12 Replacement of s 25 (Commission’s major crime function) . . . . . 12 25 Commission’s crime function . . . . . . . . . . . . . . . . . . . 12 Amendment of s 32 (Police task forces and other operational agreements) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Amendment of s 53 (Intelligence functions) . . . . . . . . . . . . . . . . . 13 Insertion of new ch 2, pt 4, divs 2A–2B . . . . . . . . . . . . . . . . . . . . 13 Division 2A Particular authorisations by reference committee 55A Authorising the commission . . . . . . . . . . . . . . . . . . . . 13 55B Matters to which the reference committee must consider before granting an authorisation . . . . . . . . . 15 55C Reference committee may give commission directions about intelligence operations . . . . . . . . . . . 15 Division 2B Public safety 55D Immediate response function to threats to public safety involving criminal organisations . . . . . . . . . . . . 16 55E How commission performs its immediate response function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Contents 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Page 2 55F Authorising the commission . . . . . . . . . . . . . . . . . . . . Amendment of s 75A (Application of div 2A) . . . . . . . . . . . . . . . . Amendment of s 75B (Power to require immediate production) . . Amendment of s 82 (Notice to attend hearing—general) . . . . . . . Amendment of s 85 (Notices requiring immediate attendance may be issued only by or with the approval of a Supreme Court judge) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 167 (Arrest warrant application) . . . . . . . . . . . . Amendment of s 168 (Issue of arrest warrant) . . . . . . . . . . . . . . . Amendment of s 176 (Commission may hold hearings). . . . . . . . Amendment of ch 4, pt 2, div 2, sdiv 1, hdg (Crime investigations and witness protection function) . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 184 (Application of sdiv 1). . . . . . . . . . . . . . . . . Amendment of s 185 (Refusal to produce—claim of reasonable excuse) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of ch 4, pt 2, div 3, sdiv 1 hdg (Crime investigations and witness protection function) . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 189 (Application of sdiv 1). . . . . . . . . . . . . . . . . Amendment of s 190 (Refusal to answer question) . . . . . . . . . . . Amendment of ch 4, pt 2, div 4, sdiv 1 hdg (Crime investigations and witness protection function) . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 193 (Application of sdiv 1). . . . . . . . . . . . . . . . . Amendment of s 197 (Restriction on use of privileged answers, documents, things or statements disclosed or produced under compulsion) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 198 (Contempt of person conducting commission hearing) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insertion of new s 198A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198A Person in contempt may be detained . . . . . . . . . . . . . Amendment of s 199 (Punishment of contempt) . . . . . . . . . . . . . Amendment of s 201 (Commission must give evidence to defence unless court certifies otherwise) . . . . . . . . . . . . . . . . . . . Amendment of s 205 (Legal assistance for crime investigations) Amendment of s 270 (Delegation—chairperson) . . . . . . . . . . . . . Amendment of s 275 (Functions of reference committee) . . . . . . Amendment of s 277 (Reference committee may obtain information from commission) . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 278 (Membership of reference committee) . . . . Amendment of s 348 (Regulation-making power) . . . . . . . . . . . . 17 17 18 18 19 20 20 21 21 21 21 22 22 22 23 23 24 24 24 25 25 27 27 27 27 28 29 29 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Contents 38 39 Part 4 40 41 42 43 44 45 46 47 48 49 Part 5 50 51 52 Part 6 53 54 55 56 57 Insertion of new s 348A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348A Criteria for recommending an entity be declared a criminal organisation . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of Criminal Code Code amended. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 1 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . Insertion of new ss 60A–60C . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60A Participants in criminal organisation being knowingly present in public places . . . . . . . . . . . . . . . . . . . . . . . 60B Participants in criminal organisation entering prescribed places and attending prescribed events . . 60C Participants in criminal organisation recruiting persons to become participants in the organisation . . Amendment of s 72 (Affray) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 92A (Misconduct in relation to public office) . . . Amendment of s 320 (Grievous bodily harm) . . . . . . . . . . . . . . . . Amendment of s 340 (Serious assaults) . . . . . . . . . . . . . . . . . . . Amendment of s 408D (Obtaining or dealing with identification information) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 552D (When Magistrates Court must abstain from jurisdiction) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insertion of new s 708A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 708A Criteria for recommending an entity be declared a criminal organisation . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of PenaltiesandSentencesAct1992 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 160A (Application of ss 160B–160D) . . . . . . . . Amendment of s 187 (Disqualification from holding Queensland driver licence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of Police Powers and Responsibilities Act 2000 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 29 (Searching persons without warrant) . . . . . . Amendment of s 32 (Prescribed circumstances for searching vehicle without warrant) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 40 (Person may be required to state name and address) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 41 (Prescribed circumstances for requiring name and address) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 30 31 33 33 34 34 35 36 37 38 38 39 39 40 40 40 42 42 42 43 44 44 44 45 2013 Act No. 45 Page 3
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Contents 58 59 60 Page 4 Amendment of s 42 (Power for age-related offences and for particular motor vehicle related purposes) . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Amendment of s 60 (Stopping vehicles for prescribed purposes) 46 Insertion of new ch 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Chapter 4A Motor vehicle forfeiture for particular criminal organisation offences Part 1 Preliminary Division 1 Interpretation 123A Definitions for ch 4A . . . . . . . . . . . . . . . . . . . . . . . . . . 46 123B Meaning of criminal organisation offence . . . . . . . . . . 47 123C References to motor vehicle includes motorbike . . . . 48 123D When a person is charged for this chapter in relation to a criminal organisation offence. . . . . . . . . . . . . . . . 48 123E Punishment under this chapter is in addition to other punishment for the same offence . . . . . . . . . . . . . . . . 48 Division 2 Relationship with other legislation 123F National Credit Code . . . . . . . . . . . . . . . . . . . . . . . . . 49 Part 2 Impounding motor vehicles and forfeiture of motor vehicles Division 1 Impounding powers and forfeiture of vehicles in particular circumstances 123G Impounding motor vehicles for criminal organisation offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 123H Forfeiture of motor vehicles if driver found guilty of criminal organisation offence . . . . . . . . . . . . . . . . . . . 50 Division 2 Immobilising powers Subdivision 1 Preliminary 123I Purpose of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 123J References to impounding a motor vehicle includes reference to immobilising vehicle . . . . . . . . . . . . . . . . 51 Subdivision 2 Removal and confiscation of number plate powers 123K Power to remove and confiscate number plates. . . . . 51 123L Moving motor vehicle to which number plate confiscation notice is attached . . . . . . . . . . . . . . . . . . 52 Subdivision 3 Immobilising device powers 123M Power to attach immobilising device. . . . . . . . . . . . . . 53 Division 3 Vehicle production notices 123N Power to require motor vehicle to be produced . . . . . 54 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Contents 123O Impoundment starts when motor vehicle produced . . 123P Vehicle production notices generally . . . . . . . . . . . . . Division 4 General provisions relating to impounding motor vehicles 123Q Particular powers for impounding motor vehicles . . . . 123R Release of motor vehicle in particular circumstances 123S Police officer may authorise tow . . . . . . . . . . . . . . . . . 123T Impounding notice or immobilising notice . . . . . . . . . Division 5 Other provisions relating to impounded motor vehicles Subdivision 1 Preliminary 123U Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 123V Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . Subdivision 2 Application for release of impounded motor vehicle 123W Application for release of impounded motor vehicle on basis of severe hardship . . . . . . . . . . . . . . . . . . . . 123X Decision on application for release of impounded motor vehicle on basis of severe hardship . . . . . . . . . 123Y Application for release of impounded motor vehicle on basis criminal organisation offence happened without owner’s consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123Z Decision on application for release of impounded motor vehicle on basis criminal organisation offence happened without owner’s consent . . . . . . . . . . . . . . 123ZA Application for release of impounded motor vehicle on basis that offender not a participant in a criminal organisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123ZB Decision on application for release of impounded motor vehicle on basis that offender not a participant in a criminal organisation . . . . . . . . . . . . . . . . . . . . . . . . 123ZC Impoundment ends if application for release of motor vehicle granted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Subdivision 3 Appeals 123ZD Who may appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123ZE How to start appeal . . . . . . . . . . . . . . . . . . . . . . . . . . 123ZF Effect of appeal on decision . . . . . . . . . . . . . . . . . . . . 123ZG Commissioner has right of appearance . . . . . . . . . . . 123ZH Hearing procedures . . . . . . . . . . . . . . . . . . . . . . . . . . 123ZI Powers of Magistrates Court . . . . . . . . . . . . . . . . . . . 54 54 55 57 57 58 61 62 62 63 65 66 67 68 69 70 70 71 71 71 71 2013 Act No. 45 Page 5
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Contents Page 6 Subdivision 4 Miscellaneous 123ZJ Power to take certain action if breach of condition . . . 72 Part 3 Offences 123ZK Offence to remove vehicle from holding yard . . . . . . . 72 123ZL Failure to comply with requirement to produce motor vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 123ZM Offence to operate vehicle to which number plate confiscation notice attached . . . . . . . . . . . . . . . . . . . . 73 123ZN Offence to remove, tamper with or modify number plate confiscation notice . . . . . . . . . . . . . . . . . . . . . . . 73 123ZO Offence to remove, tamper with or modify immobilising device . . . . . . . . . . . . . . . . . . . . . . . . . . 73 123ZP Offence to operate motor vehicle if immobilising device unlawfully removed, tampered with or modified 74 123ZQ Offence to breach condition made on release of motor vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 123ZR Offence to modify, sell or dispose of motor vehicle subject to vehicle production notice . . . . . . . . . . . . . . 74 Part 4 Other provisions Division 1 Liability for cost of impounding 123ZS State’s liability to pay costs of impounding . . . . . . . . . 75 123ZT Liability to pay costs of impounding—adult driver . . . 76 123ZU Liability to pay costs of impounding—child driver. . . . 76 123ZV Payment of costs if motor vehicle not recovered . . . . 78 123ZW Registration of costs under StatePenaltiesEnforcement Act 1999 . . . . . . . . . . . . . . . . . . . . . . . . 79 Division 2 Release of impounded vehicle 123ZX Release of motor vehicle if driver found not guilty etc. 80 Division 3 Sale, transfer or disposal of impounded or forfeited motor vehicle 123ZY Sale of motor vehicle if not recovered after impounding ends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 123ZZ Sale of impounded motor vehicle if driver fails to appear 82 123ZZA Disposal of forfeited motor vehicle . . . . . . . . . . . . . . . 83 123ZZB Application of proceeds of sale . . . . . . . . . . . . . . . . . 83 123ZZC Compensation for disposal of motor vehicle if driver found not guilty etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Division 4 Other provisions 123ZZD Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . 85 2013 Act No. 45
61 62 63 64 65 66 Part 7 67 68 69 Part 8 70 71 72 Schedule 1 1 2 3 Schedule 2 1 2 Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Contents 123ZZE Third party protection relating to forfeiture . . . . . . . . . 123ZZF Delegation—commissioner . . . . . . . . . . . . . . . . . . . . Amendment of s 150 (Search warrant application) . . . . . . . . . . . Amendment of s 156 (What search warrant must state) . . . . . . . Amendment of s 686 (Application of pt 3) . . . . . . . . . . . . . . . . . . Amendment of s 754 (Offence for driver of motor vehicle to fail to stop motor vehicle) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 809 (Regulation-making power) . . . . . . . . . . . . Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of Tow Truck Act 1973 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 38 (Exemptions) . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 43 (Regulation-making power) . . . . . . . . . . . . . Other matters Making of Criminal Code (Criminal Organisations) Regulation 2013 .......................................... Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Automatic repeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Criminal Code (Criminal Organisations) Regulation 2013 . . . Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Entities declared to be criminal organisations . . . . . . . . . . . . . . . Places declared to be prescribed places . . . . . . . . . . . . . . . . . . . Other amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insertion of new s 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Entities declared to be criminal organisations . . . . . . 85 87 87 88 88 88 88 89 90 90 90 91 91 91 92 92 92 93 96 96 96 96 2013 Act No. 45 Page 7
Queensland Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Act No. 45 of 2013 An Act to amend the Bail Act 1980, the Crime and Misconduct Act 2001, the Criminal Code, the Penalties and Sentences Act 1992, the Police Powers andResponsibilities Act 2000 and the Tow Truck Act 1973 for particular purposes, to make a regulation under the Criminal Code and to amend the Crime and Misconduct Regulation 2005 for particular purposes [Assented to 17 October 2013]
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 1 Preliminary [s 1] The Parliament of Queensland enacts— Part 1 Preliminary 1 Short title This Act may be cited as the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 . Part 2 Amendment of Bail Act 1980 2 Act amended This part amends the Bail Act 1980 . 3 Amendment of s 6 (Definitions) Section 6— insert — criminal organisation see the CriminalCode, section 1. participant , in a criminal organisation, see the Criminal Code, section 60A. 4 Amendment of s 16 (Refusal of bail) (1) Section 16— insert— (3A) If the defendant is a participant in a criminal organisation, the court or police officer must— Page 10 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 2 Amendment of Bail Act 1980 [s 4] (a) refuse to grant bail unless the defendant shows cause why the defendant’s detention in custody is not justified; and (b) if bail is granted or the defendant is released under section 11A— (i) require the defendant to surrender the defendant’s current passport; and (ii) include in the order a statement of the reasons for granting bail or releasing the defendant. (3B) If the defendant is required to surrender the defendant’s current passport under subsection (3A)(b)(i), the court or police officer must order that the defendant be detained in custody— (a) until the court or police officer is satisfied about whether the defendant is the holder of a current passport; and (b) if the defendant is the holder of a current passport—the passport is surrendered. (3C) For subsection (3A), it does not matter whether the offence with which the defendant is charged is an indictable offence, a simple offence or a regulatory offence. (3D) Subsection (3A) does not apply if the defendant proves that the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity. (2) Section 16(4), after (3)— insert— or (3A) 2013 Act No. 45 Page 11
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 5] Part 3 Amendment of Crime and Misconduct Act 2001 5 Act amended This part amends the Crime and Misconduct Act 2001 . 6 Replacement of ch 2, pt 2 hdg (Major crime) Chapter 2, part 2, heading— omit, insert — Part 2 Crime 7 Replacement of ch 2, pt 2, div 1 hdg (Major crime function) Chapter 2, part 2, division 1, heading— omit, insert — Division 1 Crime function 8 Replacement of s 25 (Commission’s major crime function) Section 25— omit, insert — 25 Commission’s crime function The commission has a function (its crime function )— (a) to investigate major crime referred to it, under division 2, by the reference committee; and (b) to investigate, under an authorisation under section 55F, incidents a criminal organisation or participants in criminal organisations have engaged in, or are Page 12 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 9] planning to engage in, that threatened or may threaten public safety. 9 Amendment of s 32 (Police task forces and other operational agreements) Section 32(3), ‘section 275(b)’— omit, insert — section 275(d) 10 Amendment of s 53 (Intelligence functions) (1) Section 53(a), after ‘activities’— insert— , including specific intelligence operations authorised by the reference committee, (2) Section 53(b), (c) and (d)— renumber as section 53(c), (d) and (e). (3) Section 53— insert— (b) to hold intelligence function hearings under an authorisation under section 55F; 11 Insertion of new ch 2, pt 4, divs 2A–2B After chapter 2, part 4, division 2— insert — Division 2A Particular authorisations by reference committee 55A Authorising the commission (1) The section applies if the reference committee is satisfied that there are reasonable grounds to 2013 Act No. 45 Page 13
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 11] Page 14 suspect that— (a) a criminal organisation, or a participant in a criminal organisation, has engaged in, is engaging in, or is planning to engage in, criminal activity; or (b) a person, regardless of whether the person holds an appointment, has engaged in, is engaging in, or is planning to engage in misconduct to support or help a criminal organisation or a participant in a criminal organisation. (2) The reference committee may authorise the commission to undertake a specific intelligence operation, including by holding hearings. (3) The authorisation must be in writing and identify— (a) the criminal organisation or participant to be investigated by the commission; and (b) the suspected criminal activity or misconduct; and (c) the purpose of the intelligence operation. (4) The authorisation may relate to any circumstances implying, or any allegations, that particular criminal activity or misconduct, is reasonably suspected. (5) The authorisation may be made by the reference committee— (a) on its own initiative; or (b) if asked by the assistant commissioner, crime or the assistant commissioner, misconduct. (6) In this section— criminal activity means any act or omission that involves the commission of an offence. 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 11] hold an appointment means hold an appointment in a unit of public administration. 55B Matters to which the reference committee must consider before granting an authorisation (1) The reference committee may authorise the commission to undertake a specific intelligence operation under section 55A only if it is satisfied— (a) as required under the section; and (b) it is in the public interest to authorise the commission to undertake the specific intelligence operation. (2) In considering the public interest, the reference committee may also have regard to the likely effectiveness of an investigation into criminal activity or misconduct without the use of powers available to the commission under this division. (3) In this section— criminal activity means any act or omission that involves the commission of an offence. 55C Reference committee may give commission directions about intelligence operations (1) The reference committee may give the commission directions imposing limitations on the commission’s intelligence operation under an authorisation under section 55A, including limitations on the exercise of the commission’s powers for the operations. (2) The reference committee may also direct the commission to end a specific intelligence operation under an authorisation if the committee considers— 2013 Act No. 45 Page 15
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 11] (a) it may be more appropriate for another entity to undertake the intelligence operation; or (b) it may be more effective for another entity to undertake the intelligence operation; or (c) undertaking an intelligence operation is not a justifiable use of the commission’s resources; or (d) the commission undertaking an intelligence operation is not in the public interest. (3) The commission must comply with a direction given under subsection (1) or (2). (4) The reference committee may amend the terms of an authorisation on its own initiative or if asked by the assistant commissioner, crime or the assistant commissioner, misconduct. (5) To remove any doubt, it is declared that subsection (2)(d) is not limited by section 55B(2). Division 2B Public safety 55D Immediate response function to threats to public safety involving criminal organisations The commission has an immediate response function in relation to an incident that threatened or may threaten public safety under an authorisation under section 55F. Page 16 55E How commission performs its immediate response function The commission performs its immediate response function by exercising its powers— 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 12] (a) to undertake crime investigations as authorised under section 55F; and (b) to hold intelligence function hearings under authorisations under section 55F. 55F Authorising the commission (1) This section applies if the chairperson is satisfied— (a) there are reasonable grounds to suspect a criminal organisation or a participant in a criminal organisation has engaged in, or is planning to engage in, an incident that threatened or may threaten public safety; and (b) it is in the public interest for the commission to conduct a crime investigation or hold an intelligence function hearing in response to, or to prevent, the threat to public safety. (2) The chairperson may authorise the crime investigation or the holding of an intelligence hearing (or both) in response to, or to prevent, the threat to public safety. (3) The authorisation must be in writing and identify— (a) the incident or anticipated incident; and (b) the criminal organisation or participant; and (c) the purpose of the crime investigation or intelligence function hearing. 12 Amendment of s 75A (Application of div 2A) Section 75A, from ‘or’— omit, insert — 2013 Act No. 45 Page 17
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 13] , a misconduct investigation or an intelligence function hearing. 13 Amendment of s 75B (Power to require immediate production) Section 75B(1), note, after ‘crime investigation’— insert — or intelligence function hearing 14 Amendment of s 82 (Notice to attend hearing—general) (1) Section 82(1)— insert— (c) for an intelligence function hearing— (i) to give evidence; or (ii) to produce a stated document or thing. (2) Section 82(2)(a)(iii)— omit, insert— (iii) a misconduct investigation; or (iv) the intelligence function; and (3) Section 82(4)— insert— (c) for an attendance notice issued in the context of an intelligence function hearing—any matter that relates to the matter for which the attendance notice was issued. (4) Section 82(6)— omit, insert— (6) A prescribed person’s fear, whether genuinely held or not, of— Page 18 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 15] (a) personal physical harm or damage to the person’s property; or (b) physical harm to someone else, or damage to the property of someone else, with whom the person has a connection or bond; is not a reasonable excuse to fail to comply with the attendance notice for a hearing in relation to a crime investigation or the intelligence function if the investigation or function relates to a criminal organisation or a participant in a criminal organisation. (7) If the commission hearing is being held under an authorisation under section 55F, the chairperson may issue an attendance notice requiring a person to attend immediately at the commission hearing at a stated place. (8) This section, other than subsection (7), is subject to section 85. (9) In this section— prescribed person means a person who is a participant in a criminal organisation. 15 Amendment of s 85 (Notices requiring immediate attendance may be issued only by or with the approval of a Supreme Court judge) (1) Section 85(2)— insert— (c) for a notice issued in the context of an intelligence function hearing under an authorisation under section 55A, delay in attendance might result in the loss of an opportunity to obtain timely intelligence— (i) in advance of a significant event; or 2013 Act No. 45 Page 19
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 16] (ii) that may help prevent a risk to public safety. Note — An attendance notice issued under section 82(7) that requires the immediate attendance of someone at a commission hearing does not require the court’s approval under this section. (2) Section 85(3)— omit, insert— (3) Subsection (3A) applies to an attendance notice issued in the context of a crime investigation or misconduct investigation or the performance of the intelligence function under an authorisation under section 55A. (3A) The notice need not state the general nature of the matters about which the person may be questioned if the chairperson is satisfied that, in the particular circumstances of the investigation or the performance of the function, stating the matters would prejudice the effectiveness of the investigation or the performance of the function. 16 Amendment of s 167 (Arrest warrant application) (1) Section 167(1), ‘Supreme Court judge’— omit, insert— ‘magistrate’. (2) Section 167(3). ‘judge’— omit, insert— ‘magistrate’. 17 Amendment of s 168 (Issue of arrest warrant) Section 168(1), ‘judge’— omit, insert — Page 20 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 18] ‘magistrate’. 18 Amendment of s 176 (Commission may hold hearings) Section 176— insert — (3) The commission may hold a hearing in relation to the performance of its intelligence function if the hearing is permitted under an authorisation under section 55A or 55F. 19 Amendment of ch 4, pt 2, div 2, sdiv 1, hdg (Crime investigations and witness protection function) Chapter 4, part 2, division 2, subdivision 1, heading, from ‘and’— omit, insert — and intelligence and witness protection functions 20 Amendment of s 184 (Application of sdiv 1) (1) Section 184(b)— renumber as section 184(c). (2) Section 184— insert— (b) an intelligence function hearing; or 21 Amendment of s 185 (Refusal to produce—claim of reasonable excuse) (1) Section 185— insert— (3A) A prescribed person’s fear, whether genuinely held or not, of— 2013 Act No. 45 Page 21
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 22] (a) personal physical harm or damage to the person’s property; or (b) physical harm to someone else, or damage to the property of someone else, with whom the person has a connection or bond; is not a reasonable excuse to fail to comply with an attendance notice or requirement made under section 75B if the hearing relates to a criminal organisation or a participant in a criminal organisation. (2) Section 185— insert — (10) In this section— prescribed person means a person who is a participant in a criminal organisation. 22 Amendment of ch 4, pt 2, div 3, sdiv 1 hdg (Crime investigations and witness protection function) Chapter 4, part 2, division 3, subdivision 1, heading, from ‘and’— omit, insert — and intelligence and witness protection functions 23 Amendment of s 189 (Application of sdiv 1) (1) Section 189(b)— renumber as section 189(c). (2) Section 189— insert— (b) an intelligence function hearing; or 24 Amendment of s 190 (Refusal to answer question) (1) Section 190(1), after ‘officer’— Page 22 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 25] insert— , unless the person has a reasonable excuse (2) Section 190— insert— (4) A prescribed person’s fear, whether genuinely held or not, of— (a) personal physical harm or damage to the person’s property; or (b) physical harm to someone else, or damage to the property of someone else, with whom the person has a connection or bond; is not a reasonable excuse to fail to answer a question if the investigation or intelligence hearing relates to a criminal organisation or a participant in a criminal organisation. (5) In this section— prescribed person means a person who is a participant in a criminal organisation. 25 Amendment of ch 4, pt 2, div 4, sdiv 1 hdg (Crime investigations and witness protection function) Chapter 4, part 2, division 4, subdivision 1, heading, from ‘and’— omit, insert— and intelligence and witness protection functions 26 Amendment of s 193 (Application of sdiv 1) (1) Section 193(b)— renumber as section 193(c). (2) Section 193— insert— (b) an intelligence function hearing; 2013 Act No. 45 Page 23
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 27] 27 Amendment of s 197 (Restriction on use of privileged answers, documents, things or statements disclosed or produced under compulsion) Section 197(3)— insert — (c) if the proceeding is a proceeding, other than a proceeding for the prosecution of an offence, under the Confiscation Act. 28 Amendment of s 198 (Contempt of person conducting commission hearing) Section 198— insert — (4) To remove any doubt, it is declared that the following contraventions relating to a hearing may be certified in writing to the Supreme Court under section 199 as a contempt of the presiding officer— (a) a failure by a person, under section 183, to take an oath when required by the presiding officer; (b) a failure by a person, under section 185 or 188, to produce a stated document or thing at a commission hearing under an attendance notice or a requirement made under section 75B without reasonable excuse; (c) a failure by a person, under section 190 or 192, to answer a question put to the person at the hearing by the presiding officer without reasonable or lawful excuse. 29 Insertion of new s 198A After section 198— Page 24 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 30] insert — 198A Person in contempt may be detained (1) If the presiding officer expresses an intention at the hearing to certify the contempt in writing to the Supreme Court, the presiding officer may, during the hearing, direct a police officer to detain the person for the purpose of bringing the person before the Supreme Court to be dealt with according to law. (2) If the person is detained under subsection (1), the person must be brought before the court as soon as practicable. 30 Amendment of s 199 (Punishment of contempt) Section 199— insert — (8A) However, if— (a) the contempt that is certified is— (i) a failure by a person, under section 183, to take an oath when required by the presiding officer; or (ii) a failure by a person, under section 185 or 188, to produce a stated document or thing at a commission hearing under an attendance notice or a requirement made under section 75B without reasonable excuse; or (iii) a failure by a person, under section 190 or 192, to answer a question put to the person at the hearing by the presiding officer without reasonable or lawful excuse; and (b) the court is satisfied the person has committed the contempt; 2013 Act No. 45 Page 25
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 30] the court must punish the person in contempt by imprisonment to be served wholly in a corrective services facility. (8B) The minimum punishment the court must impose is— (a) for a first contempt—imprisonment for the term decided by the court; or (b) for a second contempt relating to a hearing dealing with the same subject matter as that dealt with in a hearing in which the person’s contempt was first certified—2 years and 6 months imprisonment; or (c) for a third or subsequent contempt relating to a hearing dealing with the same subject matter as that dealt with in at least 2 hearings in each of which the person’s contempt was certified—5 years imprisonment. (8C) The maximum punishment the court may impose is at the discretion of the court. (8D) A person punished by imprisonment under subsection (8A) may be brought before the commission to ascertain whether the person wishes to purge the contempt. (8E) A person imprisoned under subsection (8A) may be brought before the Supreme Court, on the person’s or the commission’s application, for a declaration that the person has purged the contempt. (8F) The court may order the person’s discharge from prison before the end of the term— (a) if it is satisfied that the person has purged the contempt; and Page 26 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 31] (b) it has heard the commission’s submissions in relation to the application and the person’s discharge from prison. 31 Amendment of s 201 (Commission must give evidence to defence unless court certifies otherwise) Section 201— insert — (1A) This section does not apply to evidence obtained by the commission at an intelligence function hearing. 32 Amendment of s 205 (Legal assistance for crime investigations) Section 205— insert— (1A) This section does not apply to crime investigations authorised under section 55F. 33 Amendment of s 270 (Delegation—chairperson) Section 270(2)— omit, insert — (2) However— (a) the chairperson’s powers under section 55F or 82(7), may only be delegated to the assistant commissioner, crime; and (b) the chairperson’s powers under section 272 may only be delegated to an assistant commissioner. 34 Amendment of s 275 (Functions of reference committee) (1) Section 275(b) and (c)— 2013 Act No. 45 Page 27
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 35] renumber as section 275(c) and (d). (2) Section 275— insert — (b) to authorise the commission, as provided under chapter 2, part 4, division 2A, to undertake specific intelligence operations; 35 Amendment of s 277 (Reference committee may obtain information from commission) (1) Section 277(1)(a), from ‘major crime’— omit, insert— — (i) major crime; or (ii) an authorisation under section 55A to undertake specific intelligence operations, including any hearing held under the authorisation; and (2) Section 277— insert— (2A) The assistant commissioner, misconduct must keep the reference committee informed of the general conduct of the assistant commissioner’s operations in the performance of the commission’s function in relation to authorisations under section 55A to undertake specific intelligence operations if the operation involves suspected misconduct. (3) Section 277(3)(a), after ‘major crime’— insert— or an authorisation under section 55A to undertake specific intelligence operations under the authorisation; and Page 28 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 36] (4) Section 277— insert— (4A) Subsection (4B) applies if the reference committee asks the assistant commissioner, misconduct to give it information concerning a specific intelligence operation authorised under section 55A if the operation involves suspected misconduct. (4B) The assistant commissioner, misconduct must comply with the request and give the help the reference committee needs to consider the information. 36 Amendment of s 278 (Membership of reference committee) (1) Section 278(1)— insert— (ea) subject to subsection (1B), the assistant commissioner, misconduct; (2) Section 278— insert— (1B) The assistant commissioner, misconduct is a member of the reference committee only when the committee is performing a function that relates to an authorisation under section 55A for a matter involving suspected misconduct. 37 Amendment of s 348 (Regulation-making power) Section 348(2)— omit, insert— (2) Without limiting subsection (1), a regulation may— 2013 Act No. 45 Page 29
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 38] (a) provide for— (i) procedures to be followed in proceedings before the commission; or (ii) procedures to be observed by commission officers and other persons in performing the commission’s functions or exercising the commission’s powers; or (b) declare an entity to be a criminal organisation. 38 Insertion of new s 348A Chapter 7— insert — 348A Criteria for recommending an entity be declared a criminal organisation (1) In deciding whether to recommend an amendment of the CrimeandMisconductRegulation2005 to declare an entity to be a criminal organisation, the Minister may have regard to the following matters— (a) any information suggesting a link exists between the entity and serious criminal activity; (b) 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; (c) 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 Page 30 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 39] or not the involvement has resulted in any convictions); (d) 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; (e) any other matter the Minister considers relevant. (2) In this section— 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. serious criminal activity see the CriminalOrganisation Act 2009 , section 6. participant , in an entity, means a person who— (a) (whether by words or conduct, or in any other way) asserts, declares or advertises his or her membership of, or association with, the entity; or (b) (whether by words or conduct, or in any other way) seeks to be a member of, or to be associated with, the entity; or (c) has attended more than 1 meeting or gathering of persons who participate in the affairs of the entity in any way; or (d) has taken part on any 1 or more occasions in the affairs of the entity in any other way. 39 Amendment of sch 2 (Dictionary) (1) Schedule 2— insert— 2013 Act No. 45 Page 31
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 3 Amendment of Crime and Misconduct Act 2001 [s 39] Page 32 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 as defined under the CriminalOrganisationAct2009 ; and (ii) who, by their association, represent an unacceptable risk to the safety, welfare or order of the community; or (b) a criminal organisation under the CriminalOrganisation Act 2009 ; or (c) an entity declared under a regulation to be a criminal organisation. intelligence function hearing means a hearing authorised under section 55A or 55F(2). 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; 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 4 Amendment of Criminal Code [s 40] but does not include a lawyer acting in a professional capacity. specific intelligence operation means a specific intelligence operation authorised by the reference committee under section 55A. (2) Schedule 2, definition privilege , paragraph (a), ‘or the witness protection function’— omit, insert — or the intelligence or witness protection functions— Part 4 Amendment of Criminal Code 40 Code amended This part amends the Criminal Code. 41 Amendment of s 1 (Definitions) Section 1, definition criminal organisation — omit, insert — 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 as defined under the CriminalOrganisationAct2009 ; and 2013 Act No. 45 Page 33
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 4 Amendment of Criminal Code [s 42] (ii) who, by their association, represent an unacceptable risk to the safety, welfare or order of the community; or (b) a criminal organisation under the CriminalOrganisation Act 2009 ; (c) an entity declared under a regulation to be a criminal organisation. 42 Insertion of new ss 60A–60C Chapter 9— insert — 60A 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. Minimum penalty—6 months imprisonment served wholly in a corrective services facility. Maximum penalty—3 years imprisonment. (2) It is a defence to a charge of an offence against subsection (1) to prove that the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity. (3) In this section— 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 Page 34 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 4 Amendment of Criminal Code [s 42] (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. 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. 60B 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. Minimum penalty—6 months imprisonment served wholly in a corrective services facility. Maximum penalty—3 years imprisonment. 2013 Act No. 45 Page 35
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 4 Amendment of Criminal Code [s 42] (2) Any person who is a participant in a criminal organisation and attends, or attempts to attend, a prescribed event commits an offence. Minimum penalty—6 months imprisonment served wholly in a corrective services facility. Maximum penalty—3 years imprisonment. (3) It is a defence to a charge of an offence against subsection (1) or (2) to prove that the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity. (4) In this section— participant , in a criminal organisation, see section 60A. prescribed event means an event declared under a regulation to be a prescribed event. prescribed place means a place declared under a regulation to be a prescribed place. Page 36 60C 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. Minimum penalty—6 months imprisonment served wholly in a corrective services facility. Maximum penalty—3 years imprisonment. (2) It is a defence to a charge of an offence against subsection (1) to prove that the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity. 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 4 Amendment of Criminal Code [s 43] (3) In this section— criminal organisation does not include a criminal organisation under the CriminalOrganisation Act 2009 . participant , in a criminal organisation, see section 60A. 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. 43 Amendment of s 72 (Affray) Section 72— insert — (2) If the person convicted of an offence against subsection (1) is a participant in a criminal organisation, the offence is punishable on conviction as follows— Minimum penalty—6 months imprisonment served wholly in a corrective services facility; Maximum penalty—7 years imprisonment. (3) For an offence defined in subsection (1) alleged to have been committed with the circumstance of aggravation mentioned in subsection (2), it is a defence to the circumstance of aggravation to prove that the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity. (4) In this section— participant , in a criminal organisation, see section 60A. 2013 Act No. 45 Page 37
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 4 Amendment of Criminal Code [s 44] 44 Amendment of s 92A (Misconduct in relation to public office) (1) Section 92A— insert— (4A) The offender is liable to imprisonment for 14 years if, for an offence against subsection (1) or (2), the person who dishonestly gained a benefit, directly or indirectly, was a participant in a criminal organisation. (4B) For an offence defined in subsection (1) or (2) alleged to have been committed with the circumstance of aggravation mentioned in subsection (4A), it is a defence to the circumstance of aggravation to prove that the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity. (2) Section 92A(5)— insert— participant , in a criminal organisation, see section 60A. 45 Amendment of s 320 (Grievous bodily harm) Section 320— insert— (2) If the offender is a participant in a criminal organisation and unlawfully does grievous bodily harm to a police officer while acting in the execution of the officer’s duty, the offender must be imprisoned for 1 year with the imprisonment served wholly in a corrective services facility. (3) It is a defence to the circumstance of aggravation mentioned in subsection (2) to prove that the criminal organisation is not an organisation that Page 38 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 4 Amendment of Criminal Code [s 46] has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity. (4) In this section— participant , in a criminal organisation, see section 60A. 46 Amendment of s 340 (Serious assaults) (1) Section 340— insert— (1A) If the offender is a participant in a criminal organisation and assaults a police officer in any of the circumstances mentioned in paragraph (a) of the maximum penalty for subsection (1), the offender must be imprisoned for 1 year with the imprisonment served wholly in a corrective services facility. (1B) It is a defence to the circumstance of aggravation mentioned in subsection (1A) to prove that the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity. (2) Section 340(3)— insert— participant , in a criminal organisation, see section 60A. 47 Amendment of s 408D (Obtaining or dealing with identification information) (1) Section 408D, after subsection (1)— insert— (1AA) If the person obtaining or dealing with the identification information supplies it to a 2013 Act No. 45 Page 39
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 4 Amendment of Criminal Code [s 48] participant in a criminal organisation, the person is liable to imprisonment for 7 years. (1AB) For an offence defined in subsection (1) alleged to have been committed with the circumstance of aggravation mentioned in subsection (1AA), it is a defence to the circumstance of aggravation to prove that the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity. (2) Section 408D(7)— insert— participant , in a criminal organisation, see section 60A. 48 Amendment of s 552D (When Magistrates Court must abstain from jurisdiction) Section 552D— insert — (2A) A Magistrates Court must abstain from dealing summarily with a charge if the defendant is alleged to be a vicious lawless associate under the ViciousLawlessAssociationDisestablishment Act 2013 . 49 Insertion of new s 708A Part 8, chapter 71— insert — 708A Criteria for recommending an entity be declared a criminal organisation (1) In deciding whether to recommend an amendment of the Criminal Code (Criminal Organisations) Regulation 2013 to declare an Page 40 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 4 Amendment of Criminal Code [s 49] 2013 Act No. 45 entity to be a criminal organisation, the Minister may have regard to the following matters— (a) any information suggesting a link exists between the entity and serious criminal activity; (b) 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; (c) 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); (d) 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; (e) any other matter the Minister considers relevant. (2) In this section— 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. serious criminal activity see the CriminalOrganisation Act 2009 , section 6. participant , in an entity, means a person who— (a) (whether by words or conduct, or in any other way) asserts, declares or advertises his Page 41
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 5 Amendment of Penalties and Sentences Act 1992 [s 50] or her membership of, or association with, the entity; or (b) (whether by words or conduct, or in any other way) seeks to be a member of, or to be associated with, the entity; or (c) has attended more than 1 meeting or gathering of persons who participate in the affairs of the entity in any way; or (d) has taken part on any 1 or more occasions in the affairs of the entity in any other way. Part 5 Amendment of Penalties and Sentences Act 1992 50 Act amended This part amends the Penalties and Sentences Act 1992 . 51 Amendment of s 160A (Application of ss 160B–160D) Section 160A(4), examples— insert — • a provision providing that a minimum term of imprisonment be served 52 Amendment of s 187 (Disqualification from holding Queensland driver licence) (1) Section 187(2) and (3)— renumber as section 187(3) and (4). (2) Section 187— insert— Page 42 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 53] (2) However, if the offender is convicted of a prescribed offence (whether or not the offence was committed in connection with, or arose out of, the driving of a motor vehicle), the court must, in addition to any sentence that it may impose, order that the offender is, from the time of the conviction, disqualified absolutely, or for a period, not less than 3 months, as is ordered by the court, from holding or obtaining a Queensland driver licence. (3) Section 187(4), as renumbered, ‘subsection (1)’— omit, insert— this section (4) Section 187(4), as renumbered— insert— prescribed offence means an offence against any of the following provisions of the CriminalCode— (a) section 60A; (b) section 60B; (c) section 60C; (d) section 72, if the offender is convicted of the offence with the circumstance of aggravation mentioned in section 72(2). Part 6 Amendment of Police Powers and Responsibilities Act 2000 53 Act amended This part amends the Police Powers and Responsibilities Act2000 . 2013 Act No. 45 Page 43
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 54] 54 Amendment of s 29 (Searching persons without warrant) Section 29— insert — (1A) A police officer who reasonably suspects a person is a participant in a criminal organisation may, without a warrant, do any of the following— (a) stop and detain the person; (b) search the person and anything in the person’s possession for anything that may provide evidence of the commission of an offence. 55 Amendment of s 32 (Prescribed circumstances for searching vehicle without warrant) Section 32, after ‘warrant are that’— insert — the vehicle is being used by, or is in the possession of, a participant in a criminal organisation or 56 Amendment of s 40 (Person may be required to state name and address) Section 40— insert — (2A) If— (a) a police officer reasonably suspects the person is a person mentioned in section 41(ba)(i) or is a person mentioned in section 41(ba)(ii); and (b) the person can not provide evidence of the correctness of the stated name or address when the requirement is made; Page 44 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 57] the person may be detained for a reasonable time to confirm the correctness of the stated name and address. (2B) If the police officer reasonably suspects it is necessary to do so to confirm the correctness of the stated name given by a person mentioned in subsection (2A), the police officer may take or photograph all or any of the person’s identifying particulars. (2C) If the person is not proceeded against for an identifying particulars offence within 12 months, the identifying particulars must be destroyed within a reasonable time in the presence of a justice. 57 Amendment of s 41 (Prescribed circumstances for requiring name and address) Section 41— insert — (ba) a police officer— (i) reasonably suspects the person is a participant in a criminal organisation; or (ii) finds the person at a prescribed place as defined under the CriminalCode, section 60B; or (iii) finds the person at a prescribed event as defined under the CriminalCode, section 60B; 58 Amendment of s 42 (Power for age-related offences and for particular motor vehicle related purposes) Section 42(1)(c)(i), after ‘chapter 4’— insert — 2013 Act No. 45 Page 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 59] or 4A 59 Amendment of s 60 (Stopping vehicles for prescribed purposes) Section 60(3)(h), after ‘chapter 4’— insert — or 4A 60 Insertion of new ch 4A After chapter 4— insert — Chapter 4A Motor vehicle forfeiture for particular criminal organisation offences Part 1 Preliminary Division 1 Interpretation Page 46 123A Definitions for ch 4A In this chapter— criminal organisation offence see section 123B. immobilise , for a motor vehicle, includes restrict the use of the motor vehicle by way of an immobilising device or the removal and confiscation of the motor vehicle’s number plates. 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] immobilising device , for a motor vehicle, includes a wheel clamp. immobilising notice , for a criminal organisation offence, see section 123T(2). impounding notice , for a criminal organisation offence, see section 123T(2). number plate means a plate or other device designed to be attached to a motor vehicle to identify the motor vehicle. number plate confiscation notice see section 123K(2). usual possessor , of a motor vehicle, means a person other than an owner of the vehicle who usually has lawful possession of the vehicle. vehicle production notice , for a criminal organisation offence, see section 123N(2). 123B Meaning of criminal organisation offence (1) A criminal organisation offence means any of the following offences— (a) an offence against the CriminalCode, section 60A, 60B or 60C committed in relation to a motor vehicle; (b) an offence against the CriminalCode, section 72 committed in relation to a motor vehicle and with the circumstance of aggravation mentioned in section 72(2); (c) an offence against section 754 if the driver is a participant in a criminal organisation. (2) For subsection (1)(a) and (b), an offence is committed in relation to a motor vehicle if the vehicle is used by the offender in connection with the commission of the offence, including, for example, using the vehicle— 2013 Act No. 45 Page 47
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] (a) to drive to or from the place where the offence is committed; or (b) during the commission of the offence. 123C References to motor vehicle includes motorbike To remove any doubt, it is declared that a reference in this chapter to a motor vehicle in relation to a criminal organisation offence includes a reference to a motorbike. 123D When a person is charged for this chapter in relation to a criminal organisation offence (1) This section applies for this chapter if a proceeding for a criminal organisation offence is started against a person by notice to appear or arrest. (2) If the proceeding is started by notice to appear, the person is taken to be charged with having committed the offence when the notice to appear is issued and served on the person. (3) If the proceeding is started by arrest, the person is taken to be charged with having committed the offence when the person is arrested. 123E Punishment under this chapter is in addition to other punishment for the same offence The impounding or forfeiture of a motor vehicle under this chapter arising out of the commission of a criminal organisation offence is in addition to any other penalty that may be imposed on the person for the criminal organisation offence. Page 48 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] Division 2 Relationship with other legislation 123F National Credit Code Nothing in this chapter affects the rights of a credit provider to repossess a motor vehicle under the National Credit Code and sell it. Part 2 Impounding motor vehicles and forfeiture of motor vehicles Division 1 Impounding powers and forfeiture of vehicles in particular circumstances 123G Impounding motor vehicles for criminal organisation offence (1) A police officer may impound a motor vehicle if the driver of the motor vehicle is charged with having committed a criminal organisation offence in relation to the motor vehicle. Note — For when a person is charged with an offence, see section 123D. (2) A motor vehicle impounded under subsection (1) may be impounded until the end of the proceedings for all charges of criminal organisation offences in relation to the motor vehicle. Note — See section 123ZX about the release of a motor vehicle if the driver of the motor vehicle is found not guilty of 2013 Act No. 45 Page 49
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] the criminal organisation offence, the proceeding for the criminal organisation offence is discontinued, or the driver is found guilty of an offence against a provision mentioned in section 123B(1)(b) or (c) but not in the circumstance of being a participant in a criminal organisation. (3) This section applies subject to division 5. Note — Division 5 contains provisions relating to applications for release of impounded motor vehicles. Page 50 123H Forfeiture of motor vehicles if driver found guilty of criminal organisation offence (1) This section applies in relation to a motor vehicle impounded under section 123G if the driver of the motor vehicle is found guilty of the criminal organisation offence. (2) On the driver being found guilty— (a) the motor vehicle becomes the property of the State; and (b) any right of a person to enforce a security interest under the Personal Property Securities Act 2009 (Cwlth) against a person other than the State by taking possession of the vehicle is extinguished. (3) This section applies subject to division 5. Note — Under division 5 the commissioner may grant an application for the release of an impounded motor vehicle. (4) However, subsection (5) applies if— (a) before the driver of the motor vehicle is found guilty of the criminal organisation offence, the motor vehicle is released under section 123X, 123Z or 123ZB with a condition; and 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] (b) the motor vehicle is later impounded under section 123ZJ because of a breach of the condition. (5) Subsection (2) applies in relation to the motor vehicle as if the motor vehicle had not been released under section 123X, 123Z or 123ZB. Division 2 Immobilising powers Subdivision 1 Preliminary 123I Purpose of div 2 The purpose of this division is to provide for keeping a motor vehicle that is to be impounded under division 1 at a place other than a holding yard before it is impounded under division 1. 123J References to impounding a motor vehicle includes reference to immobilising vehicle In this chapter, if the context permits, a reference to impounding under this chapter in relation to a motor vehicle includes a reference to immobilising the motor vehicle under this division. Subdivision 2 Removal and confiscation of number plate powers 123K Power to remove and confiscate number plates (1) This section applies if— (a) a police officer intends to impound a motor vehicle under division 1; and 2013 Act No. 45 Page 51
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] (b) the police officer decides that it is appropriate in the circumstances for the motor vehicle to be kept at a place other than a holding yard before it is impounded under division 1. (2) The police officer may remove and confiscate the number plates attached to the motor vehicle and attach a notice (a number plate confiscation notice ) to the motor vehicle. (3) Except as provided under this chapter, a motor vehicle to which a number plate confiscation notice is attached under this section is prohibited from being operated from the day the notice is attached to the vehicle. Note — See sections 123ZM and 123ZN for number plate offences. (4) A motor vehicle to which a number plate confiscation notice is attached under this section is taken to be impounded under this chapter from the day the notice is attached to the vehicle. 123L Moving motor vehicle to which number plate confiscation notice is attached A motor vehicle to which a number plate confiscation notice is attached under section 123K may be moved (for example, by being driven or towed) to a place authorised by a police officer where the motor vehicle may lawfully stand. Page 52 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] Subdivision 3 Immobilising device powers 123M Power to attach immobilising device (1) This section applies if— (a) a police officer intends to impound a motor vehicle under division 1; and (b) the police officer decides that it is appropriate in the circumstances for the motor vehicle to be kept at a place other than a holding yard before it is impounded under division 1. (2) The police officer may attach an immobilising device, or arrange for an immobilising device to be attached, to the motor vehicle. (3) Except as provided under this chapter, a motor vehicle to which an immobilising device is attached under this section is prohibited from being operated from the day the device is attached to the vehicle. Note — See sections 123ZO and 123ZP for immobilising device offences. (4) A motor vehicle to which an immobilising device is attached under this section is taken to be impounded under this chapter from the day the device is attached to the vehicle. 2013 Act No. 45 Page 53
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] Division 3 Vehicle production notices 123N Power to require motor vehicle to be produced (1) This section applies if a police officer may impound a motor vehicle under division 1. (2) The police officer may require the owner or driver by notice in the approved form (a vehicle production notice ) to produce the vehicle at a stated place and stated time for impoundment or immobilisation. (3) The time or place stated in the notice must be reasonable in the circumstances. (4) If for any reason it is not practicable to give a vehicle production notice, the requirement may be made orally and confirmed by a vehicle production notice as soon as practicable. 123O Impoundment starts when motor vehicle produced (1) This section applies to a motor vehicle in relation to which a vehicle production notice has been given under section 123N. (2) The motor vehicle is impounded under division 1 from when the motor vehicle is produced at the place stated in the notice. Page 54 123P Vehicle production notices generally (1) The date stated in a vehicle production notice for production of a motor vehicle must be a date that is no later than the first business day occurring 5 days after the notice is given. (2) The disposal of a motor vehicle within the period of 5 days after a vehicle production notice is 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] given in relation to the motor vehicle does not affect the requirement to produce the motor vehicle in accordance with the notice, except as provided by subsection (3). (3) A vehicle production notice ceases to have effect in relation to a motor vehicle if it is withdrawn by the commissioner by notice in writing given to— (a) the owner or driver of the motor vehicle to whom the vehicle production notice was given; or (b) a person who purchased the motor vehicle after the production notice was given who satisfies the commissioner that the purchase was made in good faith for value and without notice, at the time of the purchase, of the production notice. Division 4 General provisions relating to impounding motor vehicles 123Q Particular powers for impounding motor vehicles (1) To impound or immobilise a motor vehicle under this chapter a police officer may— (a) stop the motor vehicle if it is moving, whether or not the motor vehicle is on a road; or (b) require the driver of the motor vehicle if it is stationary to remain at the place where it is stopped for the time reasonably necessary; or (c) direct the person who has the key needed to move the motor vehicle— 2013 Act No. 45 Page 55
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] (i) to give the key to a police officer; or (ii) if the motor vehicle is in a dwelling, to move the motor vehicle out of the dwelling, and to give the key to a police officer; or (d) if it is necessary to enter the motor vehicle to impound or immobilise it, enter the motor vehicle to impound or immobilise it; or (e) enter a place, other than the part of the place that is a dwelling, and stay for a reasonable time on the place; or (f) do anything else reasonably necessary for impounding or immobilising the motor vehicle. (2) Also, when impounding or immobilising a motor vehicle that is not registered under a transport Act, a police officer may require the driver of the motor vehicle to state the name and address of the owner of the motor vehicle. Note — Failure to comply with a direction or requirement given or made under this section is an offence against section 791. (3) After impounding a motor vehicle, a police officer may move the motor vehicle, or arrange for the motor vehicle to be moved, to a holding yard in the way the police officer considers appropriate. Example of ways of moving a motor vehicle after it is impounded— driving, pushing, towing or transporting the motor vehicle (4) Subsection (1)(a) and (b) are in addition to, and do not limit, sections 60 and 61. Page 56 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] (5) Also, the powers exercisable under subsection (1)(a) and (b) may be exercised before or after the motor vehicle is impounded or immobilised. 123R Release of motor vehicle in particular circumstances (1) If a motor vehicle that is impounded is a motor vehicle that is being unlawfully used or has been stolen or is a rental motor vehicle, the motor vehicle must be released to the owner as soon as reasonably practicable. (2) In this section— rental motor vehicle means a motor vehicle made available by a person in the course of a business in which the person rents vehicles to members of the public. unlawfully , in relation to the use of a motor vehicle, means in contravention of the SummaryOffences Act 2005 , section 25. 123S Police officer may authorise tow (1) This section applies if a police officer arranges for an impounded motor vehicle to be towed to a holding yard. (2) A police officer may sign a towing authority for the impounded motor vehicle. (3) The driver of a tow truck towing the impounded motor vehicle under a towing authority must tow the motor vehicle to— (a) if the police officer directs the driver to tow the motor vehicle to a particular holding yard or place—the holding yard or the place; or 2013 Act No. 45 Page 57
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] (b) if paragraph (a) does not apply—the holding yard to which the driver ordinarily tows motor vehicles. (4) In this section— towing authority means— (a) a towing authority under the Tow Truck Act1973 ; or (b) another document authorising a person to tow a motor vehicle. Page 58 123T Impounding notice or immobilising notice (1) This section applies if a motor vehicle is impounded or immobilised under this chapter. (2) As soon as reasonably practicable, a police officer must give written notice in the approved form ( impounding notice ) of the impounding, or written notice in the approved form ( immobilising notice ) of the immobilising, to— (a) the driver of the motor vehicle; and (b) if the driver is not the owner or not the only owner of the motor vehicle—the owner or each other owner of the motor vehicle. (3) If the driver is a child, the impounding notice or the immobilising notice must also be given to the child’s parent or guardian if it is reasonably practicable to do so, unless the parent or guardian is given notice under subsection (2). (4) The impounding notice or the immobilising notice must state— (a) that the motor vehicle is impounded under this chapter until the end of the proceedings for all charges of criminal organisation offences in relation to the motor vehicle; and 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] 2013 Act No. 45 (b) that, if the driver of the motor vehicle is found guilty of the criminal organisation offence for which the vehicle was impounded, the motor vehicle may be forfeited to the State under section 123H; and (c) the prescribed impoundment information. (5) When giving an impounding notice or immobilising notice under this section to a child or the child’s parent or guardian, the police officer giving the notice must also give the person an explanation of the matters stated in the impounding notice or immobilising notice. (6) The police officer may give the explanation by giving the person a statement, in the approved form, containing the explanation if it is appropriate in the circumstances to do so. (7) An impounding notice or immobilising notice given to a driver under subsection (2)(a) must be given personally to the driver. (8) If the name of an owner of the motor vehicle is not known, an impounding notice or immobilising notice required to be given to the owner under subsection (2)(b) may be given by making the information required to be included on the impounding notice or immobilising notice, other than the owner’s name and address, available on the police service internet website. (9) In this section— prescribed impoundment information means— (a) information about how the owner of a motor vehicle impounded under this chapter may recover the motor vehicle; and (b) a statement that, before the motor vehicle may be recovered, the owner may be Page 59
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] Page 60 required to produce satisfactory evidence of the ownership of the motor vehicle; and (c) a statement that, if the driver is an adult, the driver will be required to pay the costs of removing and keeping the motor vehicle; and (d) a statement that, if the driver is a child and the child is found guilty of the offence for which the motor vehicle was impounded, the court may order the child or the child’s parent or guardian to pay the costs of removing and keeping the motor vehicle; and (e) a statement that, if the owner of a motor vehicle fails to recover the motor vehicle after the impoundment ends under this chapter and the owner was the driver of the motor vehicle when it was impounded, the owner is liable to pay the costs of keeping the motor vehicle for each day after the impoundment ends, whether or not the driver is found guilty of the offence for which the motor vehicle is impounded; and (f) a statement that, if the owner of the motor vehicle fails to recover the motor vehicle after the impounding ends under this chapter and the owner was not the driver of the motor vehicle when it was impounded, the owner is liable to pay the costs of keeping the motor vehicle for each day after the impoundment ends that is more than 2 business days after the owner is given the impounding notice; and (g) the penalty for unlawfully removing the motor vehicle from the place at which it is held; and 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] 123ZT Liability to pay costs of impounding—adult driver (1) This section applies in relation to a motor vehicle impounded for a criminal organisation offence if the driver of the motor vehicle was an adult when he or she committed the offence for which it was impounded. (2) If the driver is found guilty of a criminal organisation offence in relation to the motor vehicle— (a) the driver is liable to pay the costs of removing or keeping the motor vehicle; and (b) any costs paid by someone else on the driver’s behalf become a debt payable to the other person by the driver. Page 76 123ZU Liability to pay costs of impounding—child driver (1) This section applies in relation to a motor vehicle impounded because of a criminal organisation offence if the driver of the motor vehicle was a child when he or she committed the offence for which it was impounded. (2) If a court finds the child guilty of a criminal organisation offence in relation to the motor vehicle, the court must consider whether the child has the capacity to pay the costs of removing or keeping the motor vehicle. (3) If the court considers the child has the capacity to pay those costs, the court may order the child to pay the costs of removing and keeping the motor vehicle. (4) An order made by the court under subsection (3) is taken to be an order under the Youth Justice Act1992 , section 310, requiring a payment to the State. 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] (5) If the court considers the child does not have the capacity to pay the costs of removing and keeping the motor vehicle, the court may call on the child’s parent or guardian to show cause why the parent or guardian should not pay the costs of removing and keeping the motor vehicle. (6) If the court decides to call on the child’s parent or guardian to show cause— (a) the Youth Justice Act 1992 , section 258(4) to(8) apply to the call; and (b) the show cause hearing must be conducted in the way required under the Youth JusticeAct 1992 , section 259(1) to (4); and (c) the YouthJusticeAct1992 , section 259(5) applies as if the reference to section 258(1)(a), (b) and (c) were a reference to subsection (8)(a) and (b) of this section; and (d) the Youth Justice Act 1992 , section 259(6) to(12) applies to the court’s decision and orders. (7) For applying subsection (6)— (a) a reference to compensation in the YouthJusticeAct1992 , sections 258 and 259 is taken to be a reference to the costs of removing and keeping the motor vehicle; and (b) a reference to the prosecution in the YouthJusticeAct1992 , sections 258 and 259 is taken to be a reference to the commissioner. (8) For subsection (6)(c), the matters are— (a) the parent or guardian contributed to the fact the offence happened by not adequately supervising the child; and 2013 Act No. 45 Page 77
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] (b) it is reasonable the parent or guardian pay the costs of removing and keeping the motor vehicle. (9) The Youth Justice Act 1992 , section 260 applies to the costs of removing and keeping the motor vehicle ordered to be paid under this section as if the order under this section were an order for compensation to be paid to the State under the Youth Justice Act 1992 , section 259. (10) If the court orders the child to pay the costs of removing or keeping the motor vehicle, any costs paid by the State under section 123ZS(2) become a debt payable to the State by the child. (11) If the court orders the child’s parent or guardian to pay the costs of removing or keeping the motor vehicle, any costs paid by the State under section 123ZS(2) become a debt payable to the State by the child’s parent or guardian. Page 78 123ZV Payment of costs if motor vehicle not recovered (1) This section applies if a person who is entitled to recover a motor vehicle fails to recover the motor vehicle after the person becomes entitled. (2) If— (a) before the impoundment ends under this chapter, the owner was personally given an impounding notice for the motor vehicle; and (b) the owner was the driver when the vehicle was impounded; the owner is liable to pay the costs of keeping the motor vehicle for each day after the impounding ends. (3) If— 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] (a) before the impoundment ends under this chapter, the owner was given an impounding notice for the motor vehicle; and (b) the owner was not the driver of the motor vehicle when it was impounded; the owner is liable to pay the costs of keeping the vehicle for each day that is more than 2 business days after the owner is given the impounding notice. (4) If the owner was not the driver of the motor vehicle and pays the costs of keeping the motor vehicle as required under subsection (2) or (3), the owner may recover the costs paid from the driver as a debt. 123ZW Registration of costs under State PenaltiesEnforcement Act 1999 (1) If an adult who is liable to pay costs under section 123ZU(11) fails to pay the costs, the commissioner may give particulars of the costs to the registrar under the StatePenaltiesEnforcement Act 1999 for registration under that Act as if— (a) the commissioner were the registrar of a court; and (b) the particulars were particulars of a fine imposed by a court and the amount of the fine were unpaid after the time allowed by the court for payment. (2) The registrar must register the particulars under the State Penalties Enforcement Act 1999 , section 34. (3) For this section, the adult who is liable to pay costs under this division fails to pay the costs if— 2013 Act No. 45 Page 79
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] (a) the commissioner obtains an order for payment of costs against the person; and (b) the commissioner gives the person a copy of the order and a letter of demand for payment of the costs; and (c) the person fails to pay the costs within 28 days after receiving the copy of the order and the letter of demand, or the longer period agreed to by the commissioner. Division 2 Release of impounded vehicle Page 80 123ZX Release of motor vehicle if driver found not guilty etc. (1) This section applies in relation to a motor vehicle impounded under section 123G if— (a) the driver of the motor vehicle is found not guilty of the criminal organisation offence; or (b) the proceeding for the criminal organisation offence is discontinued; or (c) for a criminal organisation offence mentioned in section 123B(1)(b) or (c)—the driver is found guilty of an offence against a provision mentioned in the paragraph but not in the circumstance of being a participant in a criminal organisation. (2) Subject to subsections (3) and (4), the motor vehicle must be released to the owner as soon as reasonably practicable. (3) A motor vehicle may not be released under subsection (2) if the driver has been charged with having committed another criminal organisation 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] offence for which the motor vehicle may be impounded under this chapter. (4) Also, if the driver has been charged with having committed a prescribed offence for which the vehicle may be impounded under chapter 4, the motor vehicle may be impounded or immobilised under that chapter as if it had not previously been impounded under this chapter. Division 3 Sale, transfer or disposal of impounded or forfeited motor vehicle 123ZY Sale of motor vehicle if not recovered after impounding ends (1) This section applies if, within 30 days after the impoundment of a motor vehicle ends under this chapter— (a) the owner of the motor vehicle does not recover the motor vehicle; or (b) after making reasonable inquiries, a police officer can not find out who owns the motor vehicle. (2) The commissioner may sell the motor vehicle and anything in or on it by public auction or dispose of it in the way the commissioner considers appropriate. (3) For subsection (2), the motor vehicle is taken to have been forfeited to the State. (4) Notice of the proposed sale or disposal must be published on the police service internet website. (5) If the name and address of the owner of the motor vehicle is known— 2013 Act No. 45 Page 81
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] (a) the commissioner must also give written notice of the proposed sale or disposal to the owner; and (b) the owner’s name and address must not be published on the police service website. 123ZZ Sale of impounded motor vehicle if driver fails to appear (1) This section applies in relation to a motor vehicle impounded under this chapter if a court orders that a warrant issue for the arrest of the driver of the motor vehicle to be brought before the court to be dealt with according to law because the driver has failed to appear before the court in relation to the charge for the criminal organisation offence. (2) On the warrant being issued the motor vehicle is taken to have been forfeited to the State. (3) The commissioner may sell the motor vehicle and anything in or on it by public auction or dispose of it in the way the commissioner considers appropriate. (4) Notice of the proposed sale or disposal must be published on the police service internet website. (5) If the name and address of the owner of the motor vehicle is known— (a) the commissioner must also give written notice of the proposed sale or disposal to the owner; and (b) the owner’s name and address must not be published on the police service website. Page 82 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] 123ZZA Disposal of forfeited motor vehicle The commissioner may dispose of a motor vehicle forfeited to the State under this chapter in the way the commissioner considers appropriate, including by selling it. 123ZZB Application of proceeds of sale (1) This section applies if the commissioner sells a motor vehicle under section 123ZY, 123ZZ or 123ZZA. (2) The proceeds of the sale are to be applied in the following order— (a) in payment of the expenses of the sale; (b) in payment of the costs of removing and keeping the motor vehicle and for searching registers for giving notice of the motor vehicle’s impounding or immobilisation; (c) if there is an amount owing to a person under a security interest registered for the motor vehicle under the Personal Property Securities Act 2009 (Cwlth)—in payment of the amount owing to the holder of the security interest; (d) if the motor vehicle is sold under section 123ZY—in payment of any balance to the owner; (e) if the motor vehicle is sold under section 123ZZ— (i) if the person the subject of the warrant mentioned in section 123ZZ is not the owner, usual driver or usual possessor of the vehicle—in payment of any balance to the owner; or 2013 Act No. 45 Page 83
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] (ii) otherwise—in payment to the consolidated fund; (f) if the motor vehicle is sold under section 123ZZA—in payment to the consolidated fund. Page 84 123ZZC Compensation for disposal of motor vehicle if driver found not guilty etc. (1) This section applies if— (a) any of the following happens— (i) a driver is found not guilty of a criminal organisation offence; (ii) the proceeding for a criminal organisation offence is discontinued; (iii) a driver is found guilty of an offence against a provision mentioned in section 123B(1)(b) or (c) but not in the circumstance of being a participant in a criminal organisation; and (b) the commissioner has before the happening of the event mentioned in paragraph (a) received the motor vehicle to which the offence relates under this chapter; and (c) the commissioner has— (i) sold the motor vehicle; or (ii) otherwise disposed of the vehicle. (2) Compensation is payable by the State to the person whose motor vehicle is sold or otherwise disposed of. (3) The Minister is to decide the amount of the compensation. (4) A person who is dissatisfied with the Minister’s decision under subsection (3) may apply to a 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] court, within 28 days, for compensation under this section. (5) If the person applies under subsection (4), the court may decide the amount of the compensation. Division 4 Other provisions 123ZZD Protection from liability (1) A police officer acting in good faith and without negligence is not liable for any damage, loss or depreciation to a motor vehicle, including the motor vehicle’s number plates, during the impounding of the motor vehicle. (2) If subsection (1) prevents liability attaching to a police officer, liability instead attaches to the State. (3) Also, if a police officer signs a towing authority under section 123S for the motor vehicle, the State is not liable for any damage, loss or depreciation to the motor vehicle while it is being moved under the towing authority and while it is impounded in the holding yard of the person authorised under the towing authority to tow the motor vehicle. 123ZZE Third party protection relating to forfeiture (1) This section applies in relation to a person, other than a defendant, who has an interest in a motor vehicle forfeited to the State under this chapter. (2) The person may apply to a determining court for an order under subsection (7). (3) Subsection (2) applies even though the value of the motor vehicle may be more than the 2013 Act No. 45 Page 85
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 60] maximum amount that may be claimed in a personal action in the civil jurisdiction of a Magistrates Court. (4) Unless the determining court gives leave, the application must be made within 6 months after the day the motor vehicle became the property of the State. (5) The determining court may give leave for a later application if it is satisfied that the delay in applying was not because of the applicant’s neglect. (6) Unless the determining court gives leave, a person who was given notice of the hearing of the charge for the criminal organisation offence can not apply to the court for an order under subsection (7). (7) On an application, an order may be made— (a) declaring the nature, extent and, if necessary for the order, the value (when the declaration is made) of the applicant’s interest in the motor vehicle; and (b) directing the State— (i) if the motor vehicle is still vested in the State—to transfer the motor vehicle to the applicant; or (ii) if the motor vehicle is no longer vested in the State—to pay to the applicant the value of the applicant’s interest in the motor vehicle after taking into account any amount paid to the holder of a registered security interest under section 123ZZB(2)(c). (8) The determining court must, and may only, make the order if it is satisfied— Page 86 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 61] (a) the applicant has or, apart from the forfeiture, would have a genuine interest in the motor vehicle; and (b) the relevant criminal organisation offence happened without the knowledge and consent of the applicant. (9) For all applications, including applications for leave to apply, the applicant must give notice of the making of the application to the commissioner. (10) In this section— defendant means a person found guilty of the criminal organisation offence because of which the forfeiture under this chapter happened. determining court means— (a) the Magistrates Court for the Magistrates Court district, or division of the district, in which the motor vehicle was impounded for the criminal organisation offence; or (b) the court before which the defendant was convicted of the criminal organisation offence. 123ZZF Delegation—commissioner The commissioner may delegate any of the commissioner’s powers under this chapter including, for example, considering an application for the release of an impounded vehicle under part 2, division 5 and making a decision about the application, to a police officer of at least the rank of inspector. 61 Amendment of s 150 (Search warrant application) Section 150(1)(c), after ‘chapter 4’— insert — 2013 Act No. 45 Page 87
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 62] , 4A 62 Amendment of s 156 (What search warrant must state) Section 156(1)(b)(iv), after ‘chapter 4’— insert — , 4A 63 Amendment of s 686 (Application of pt 3) Section 686(2)(a), after ‘chapter 4’— insert — , 4A 64 Amendment of s 754 (Offence for driver of motor vehicle to fail to stop motor vehicle) Section 754(2), ‘Minimum penalty—50 penalty units.’— omit, insert — Minimum penalty— (a) if the driver is a participant in a criminal organisation within the meaning of the CriminalCode, section 60A—100 penalty units or 100 days imprisonment served wholly in a corrective services facility; or (b) otherwise—50 penalty units or 50 days imprisonment served wholly in a corrective services facility. 65 Amendment of s 809 (Regulation-making power) (1) Section 809(2)(b), after ‘, 4’— insert — , 4A Page 88 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 6 Amendment of Police Powers and Responsibilities Act 2000 [s 66] (2) Section 809(2)— insert — (d) notice requirements for impounding or immobilising motor vehicles under chapter 4A. 66 Amendment of sch 6 (Dictionary) (1) Schedule 6, definition participant — omit. (2) Schedule 6— insert — criminal organisation — (a) generally, see Criminal Code, section 1; and (b) in relation to an offence against the CriminalCode, section 60C—see that section. criminal organisation offence , for chapter 4A, see section 123B. eligible person , for chapter 4A, part 2, division 5, see section 123U. immobilise , for chapter 4A, see section 123A. immobilising device , for chapter 4A, see section 123A. immobilising notice , for chapter 4A, see section 123T(2). impounding notice , for chapter 4A, see section 123T(2). information notice , for chapter 4A, part 2, division 5, see section 123U. number plate , for chapter 4A, see section 123A. number plate confiscation notice , for chapter 4A, see section 123K(2). 2013 Act No. 45 Page 89
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 7 Amendment of Tow Truck Act 1973 [s 67] participant — (a) in a criminal organisation, see CriminalCode, section 60A; or (b) for chapter 11, see section 229. usual possessor , for chapter 4A, see section 123A. vehicle production notice , for chapter 4A, see section 123N(2). vehicle release notice , for chapter 4A, part 2, division 5, see section 123U. (3) Schedule 6, definition owner , after ‘chapter 4’— insert — , 4A Part 7 Amendment of Tow Truck Act 1973 67 Act amended This part amends the Tow Truck Act 1973 . 68 Amendment of s 38 (Exemptions) Section 38(2), after ‘chapter 4,’— insert — 4A, 69 Amendment of s 43 (Regulation-making power) Section 43(2)(r), after ‘chapter 4’— Page 90 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Part 8 Other matters [s 70] insert — , 4A Part 8 Other matters 70 Making of Criminal Code (Criminal Organisations) Regulation 2013 (1) Schedule 1 has effect to make the Criminal Code (Criminal Organisations) Regulation 2013 that is set out in schedule 1 as a regulation under the Criminal Code. (2) To remove any doubt, it is declared that the Criminal Code (Criminal Organisations) Regulation 2013 , on the commencement of schedule 1, stops being a provision of this Act and becomes a regulation made under the Criminal Code. 71 Regulation amended Schedule 2 amends the CrimeandMisconductRegulation2005 . 72 Automatic repeal For the purpose of the ActsInterpretationAct1954 , section 22C, this Act is an amending Act. 2013 Act No. 45 Page 91
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Schedule 1 Schedule 1 Criminal Code (Criminal Organisations) Regulation 2013 section 70 1 Short title This regulation may be cited as the Criminal Code (Criminal Organisations) Regulation 2013 . 2 Entities declared to be criminal organisations For the CriminalCode, section 1, definition criminal organisation , paragraph (c), the following entities are declared to be criminal organisations— • the motorcycle club known as the Bandidos • the motorcycle club known as the Black Uhlans • the motorcycle club known as the Coffin Cheaters • the motorcycle club known as the Comancheros • the motorcycle club known as the Finks • the motorcycle club known as the Fourth Reich • the motorcycle club known as the Gladiators • the motorcycle club known as the Gypsy Jokers • the motorcycle club known as the Hells Angels • the motorcycle club known as the Highway 61 • the motorcycle club known as the Iron Horsemen • the motorcycle club known as the Life and Death • the motorcycle club known as the Lone Wolf • the motorcycle club known as the Mobshitters • the motorcycle club known as the Mongols Page 92 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Schedule 1 • the motorcycle club known as the Muslim Brotherhood Movement • the motorcycle club known as the Nomads • the motorcycle club known as the Notorious • the motorcycle club known as the Odins Warriors • the motorcycle club known as the Outcasts • the motorcycle club known as the Outlaws • the motorcycle club known as the Phoenix • the motorcycle club known as the Rebels • the motorcycle club known as the Red Devils • the motorcycle club known as the Renegades • the motorcycle club known as the Scorpions 3 Places declared to be prescribed places For the Criminal Code, section 60B(4), definition prescribed place , the following places are declared to be prescribed places— • 11 Frodsham Street, Albion • shop 5/1 Thorsborne Street, Beenleigh • 6 Enterprise Street, Boyne Island • shed 14/136 Aumuller Street, Bungalow • 200 Hartley Street, Bungalow • 1/16 Ern Harley Drive, Burleigh Heads • 34 Lemana Lane, Burleigh Heads • unit 3/7 Lear Jet Drive, Caboolture • 104 Spence Street, Cairns • unit 3/37 Caloundra Road, Caloundra West • shed 1/5 Garema Street, Cannonvale • shed 4/11 Ryecroft Street, Carrara 2013 Act No. 45 Page 93
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Schedule 1 • 31 Selhurst Street, Coopers Plains • unit 7/12 Hayter Street, Currumbin Waters • unit 5/17 Cottonview Street, Emerald • 11 Greer Lane, Eumundi • shed 3/85 Hanson Road, Gladstone • unit 3/31 Tradelink Drive, Hillcrest • unit 5/29 Pound Street, Kingaroy • 15–17 Avian Street, Kunda Park • unit 5/1 Chain Street, Mackay • 4 Keats Street, Mackay • unit 4/55 Cronulla Avenue, Mermaid Beach • 4 Ellen Street, Moorooka • 31 Unwin Street, Moorooka • 1 Zena Street, Mt Isa • unit 2/12 Lawrence Drive, Nerang • unit 5/144 Eumundi Noosa Road, Noosaville • 2 Millchester Road, Queenton • 26252 Peak Downs Highway, Racecourse • shed 12/13 Turley Street, Raceview • 36 East Lane, Rockhampton • unit 1/26 Rowland Street, Slacks Creek • unit 2/8 Proprietary Drive, Tingalpa • shed 4/14 Civil Court, Toowoomba • 209 James Street, Toowoomba • units 3 and 4/82 Leyland Street, Townsville • 29 Matheson Street, Virginia • 81 Ingham Road, West End • 391 Montague Road, West End Page 94 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Schedule 1 • shed 1A/10 Industrial Avenue, Yeppoon 2013 Act No. 45 Page 95
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Schedule 2 Schedule 2 Other amendments section 71 1 Regulation amended This schedule amends the Crime and Misconduct Regulation2005 . 2 Insertion of new s 18 Part 5— insert — 18 Entities declared to be criminal organisations The following entities are declared to be criminal organisations— • the motorcycle club known as the Bandidos • the motorcycle club known as the Black Uhlans • the motorcycle club known as the Coffin Cheaters • the motorcycle club known as the Comancheros • the motorcycle club known as the Finks • the motorcycle club known as the Fourth Reich • the motorcycle club known as the Gladiators • the motorcycle club known as the Gypsy Jokers • the motorcycle club known as the Hells Angels • the motorcycle club known as the Highway 61 • the motorcycle club known as the Iron Horsemen • the motorcycle club known as the Life and Death • the motorcycle club known as the Lone Wolf • the motorcycle club known as the Mobshitters • the motorcycle club known as the Mongols Page 96 2013 Act No. 45
Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 Schedule 2 • the motorcycle club known as the Muslim Brotherhood Movement • the motorcycle club known as the Nomads • the motorcycle club known as the Notorious • the motorcycle club known as the Odins Warriors • the motorcycle club known as the Outcasts • the motorcycle club known as the Outlaws • the motorcycle club known as the Phoenix • the motorcycle club known as the Rebels • the motorcycle club known as the Red Devils • the motorcycle club known as the Renegades • the motorcycle club known as the Scorpions © State of Queensland 2013 Authorised by the Parliamentary Counsel 2013 Act No. 45 Page 97
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