Section 26 Crimes (Criminal Organisations Control) Act 2012 | Consequences of Control Order


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The Legislation

Section 26 of the Crimes (Criminal Organisations Control) Act 2012 (NSW) deals with Consequences of Control Order and is extracted below.

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26 Association between members of declared organisations subject to interim control order or control order

(1) A controlled member of a declared organisation who associates with another controlled member of the declared organisation is guilty of an offence. Maximum penalty: Imprisonment for 2 years.

(1A) A controlled member of a declared organisation who, at any time within a period of 3 months, associates with another controlled member of the declared organisation on 3 or more occasions is guilty of an offence. Maximum penalty: Imprisonment for 3 years.

(1B) A controlled member of a declared organisation who associates with another controlled member of the declared organisation after being convicted of an offence under this section is guilty of an offence. Maximum penalty: Imprisonment for 5 years.

(2) A person may be guilty of an offence under this section in respect of associations with the same person or with different people.

(3) It is a defence to a prosecution for an offence under this section if the defendant establishes that he or she did not know, and could not reasonably be expected to have known, that the other person with whom he or she associated was a controlled member of the declared organisation.

(4) It is a defence to a prosecution for an offence under this section if the association is in accordance with an exemption under section 19 (7) (a).

(5) The following forms of associations are to be disregarded for the purposes of this section in its application to a defendant to whom an interim control order relates if the defendant proves that the association was reasonable in the circumstances:
(a) associations between close family members,
(b) associations occurring in the course of a lawful occupation, business or profession,
(c) associations occurring at a course of training or education of a kind prescribed by the regulations between persons enrolled in the course,
(d) associations occurring at a rehabilitation, counselling or therapy session of a kind prescribed by the regulations,
(e) associations occurring in lawful custody or in the course of complying with a court order,
(f) other associations of a kind prescribed by the regulations.

(6) For the avoidance of doubt, in proceedings for an offence against this section, it is not necessary for the prosecution to prove that the defendant associated with another person for any particular purpose or that the association would have led to the commission of any offence.

(7) For the purposes of this section, a control order made in relation to a person is conclusive evidence that the person is a controlled member of the particular declared organisation to which the control order relates and of the terms of the order (including any exemptions from the operation of this section under section 19 (7) (a)).

(7A) A police officer who has reasonable cause to suspect that a person is a controlled member of a declared organisation who is associating with another controlled member of the declared organisation may request the person to disclose his or her identity. It is an offence for a person to fail or refuse without reasonable excuse to comply with a request to disclose his or her identity or to give false or misleading information about his or her identity–see section 35A.

(8) For the purposes of this section, a person is a “close family member” of another person if:
(a) the person is a spouse or former spouse of the other or is, or has been, in a domestic relationship with the other, or
(b) the person is a parent or grandparent of the other (whether by blood or by marriage), or
(c) the person is a brother or sister of the other (whether by blood or by marriage), or
(d) the person is, or has been, a guardian or carer of the other.

(9) In this section:”domestic relationship” has the same meaning as in the Property (Relationships) Act 1984.”spouse” –a person is the spouse of another if they are legally married.

Section 3 of the Act defines the term ‘associate with’:
(1) In this Act:”associate with” means:
(a) to be in company with, or
(b) to communicate with by any means (including by post, facsimile, telephone, email or any other form of electronic communication).