2018
2018
2019-10-23
act
government
publicspecial
act.reprint
act-1987-015
partuncommenced
2018-10-17
2018-10-17
1
2018
none
act-2018-083
c5aa71df-b2bb-4100-8415-791776916e5d
7a672a6a-8189-430d-b1a7-eedc24f07cca
See
also—
Justice Legislation Amendment Bill (No
2) 2019
Note—
Amending Acts and amending provisions are subject
to automatic repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act to make miscellaneous amendments to
various Acts with respect to the making, duration and variation of apprehended
domestic violence orders, eligibility for victims support and a further
indictable offence of choking, suffocating or
strangulation.
1Name of
Act
This Act is the Crimes
Legislation Amendment Act 2018.
2Commencement
(1)
Except as provided by this section, this Act
commences on a day or days to be appointed by
proclamation.
(2)
Schedule 2 [2] commences on the date of
commencement of Schedule 1 [3] to the Victims Rights
and Support Amendment (Statutory Review) Act 2018, or on
the date of assent to this Act, whichever occurs later.
(3)
Schedule 3 commences on 1 December 2018, or on
the date of assent to this Act, whichever occurs later.
Schedule 1Amendment of Crimes (Domestic and Personal Violence) Act 2007
No 80
[1]Section 39 Final order to be
made on guilty plea or guilt finding for serious offence
Insert after section 39 (2):
(2A)
In the case of an apprehended domestic violence
order, the period of the order is to be determined in accordance with section
79C.
[2]Section
49AA
Insert after section 49:
49AAPeriod for which apprehended
domestic violence order sought
(1)
The default
period for an apprehended domestic violence order is as
follows:
(a)
if the order relates to a defendant who is 18
years of age or older—2 years,
(b)
if the order relates to a defendant who is under
18 years of age—1 year.
(2)
An application for an apprehended domestic
violence order is taken to include a request that the order remain in force
for the default period.
(3)
Despite subsection (2), an applicant may request
a period that is different to the default period.
(4)
If the defendant is 18 years of age or older the
applicant may request an indefinite period.
(5)
An applicant may request a period that is longer
than the default period if the defendant:
(a)
has been convicted of a domestic violence offence
(whether in relation to the protected person, or any other person),
or
(b)
has been convicted of a contravention of an
apprehended domestic violence order (whether that order was made in relation
to the protected person or any other person), or
(c)
is alleged to have engaged in conduct that, in
the opinion of the applicant, means that a longer period than 2 years is
warranted to ensure the safety and protection of the protected person,
or
(d)
is alleged to have committed a domestic violence
offence and the nature of the alleged offence warrants, in the opinion of the
applicant, a longer period than 2 years, or
(e)
has been sentenced to, or is serving, a term of
imprisonment in relation to a domestic violence offence committed against the
protected person in which case the period must be determined in accordance
with section 79C and may include a period of more than 2 years after the end
of the defendant’s sentence for that offence.
(6)
An applicant who requests a period that is longer
than the default period must specify the reasons for seeking that longer
period.
(7)
If, after an application is made, the applicant
becomes aware that the defendant has been sentenced to, or is serving, a term
of imprisonment in relation to a domestic violence offence committed against
the protected person, the applicant may make an oral submission to the court
to vary the period sought, having regard to section 79C.
[3]Section
73A
Insert after section 73:
73AVariation of interim or final
apprehended domestic violence order by police
(1)
The conditions of an apprehended domestic
violence order or an interim apprehended domestic violence order (the existing
order) relating to a defendant who is aged 16 years or older
may be varied by a police officer (a police
variation).
(2)
A police officer may make a police variation only
if there has been a change in circumstances since the existing order was made,
resulting in an increased risk to the safety of the protected person that
requires an urgent response, and the officer is of the opinion that:
(a)
the increased risk cannot be addressed under the
existing order, and
(b)
there are reasonable grounds for the urgent
making of the police variation (including, but not limited to, that the
increased risk cannot be addressed by an immediate application to an
appropriate court for variation of the existing order),
and
(c)
the variation is appropriate to address the
increased risk.
(3)
A police officer must not make a police variation
in relation to an existing order unless the police officer has had regard to
each of the following to the extent that the police officer has knowledge of
those matters:
(a)
any views expressed by or on behalf of the
protected person, and
(b)
the circumstances of the
defendant.
(4)
A police officer must not make a police variation
to an existing order if doing so decreases the protection afforded to the
protected person.
(5)
A police variation is of no effect unless it has
been made or approved by a senior police officer.
(6)
A police variation takes effect when notice of
the police variation is served on the defendant.
(7)
For the purposes of this Part, a police variation
is taken to be an application to the appropriate court for a variation of the
conditions of the existing order.
(8)
Notice of the police variation served on the
defendant is to contain a direction for the appearance of the defendant at a
hearing of the application on a day specified in the notice, being a day that
is not more than 28 days after the day on which the police variation takes
effect.
(9)
The day specified in the notice must be the
earliest date on which the matter can be listed at the appropriate
court.
(10)
Despite subsection (9), the matter is to be
listed on a domestic violence list at the appropriate court if it is possible
to do so within 28 days after the police variation takes effect, even if the
matter could have been listed on an earlier day on another
list.
(11)
An appropriate court, when hearing the
application, may determine to:
(a)
vary the conditions of the existing order in
accordance with the police variation, or
(b)
vary the conditions of the existing order in some
other way to address the increased risk, or
(c)
not vary the conditions of the existing
order.
(12)
The police variation, including any variation to
the existing order, is revoked:
(a)
when the court makes a determination under
subsection (11), or
(b)
if the court does not make a determination within
28 days after the police variation takes effect—28 days after the police
variation takes effect.
(13)
If a court makes a determination under subsection
(11) with respect to a police variation, a subsequent police variation cannot
be made under this section in relation to the same risk to the safety of the
protected person that gave rise to the earlier police
variation.
[4]Section 79 Duration of
apprehended personal violence orders
Omit “final apprehended violence
order” from section 79 (1).
Insert instead “apprehended personal
violence order”.
[5]Sections
79A–79C
Insert after section 79:
79ADuration of apprehended
domestic violence orders
(1)
The default
period for an apprehended domestic violence order is as
follows:
(a)
if the order relates to a defendant who is 18
years of age or older—2 years,
(b)
if the order relates to a defendant who is under
18 years of age—1 year.
(2)
An apprehended domestic violence order remains in
force for the default period unless a different period is specified by the
court.
(3)
The court may specify a different period if it is
of the opinion that the different period is sufficient to ensure the safety
and protection of the protected person.
(4)
In making its decision about whether to specify a
different period for an order to remain in force, the court may have regard to
the following:
(a)
the period sought by the applicant under section
49AA,
(b)
the nature of the domestic
violence,
(c)
the history of the domestic violence, including
whether the defendant has previously contravened an apprehended domestic
violence order or been found guilty of a domestic violence
offence,
(d)
the seriousness and frequency of the domestic
violence,
(e)
the extent to which the length of the period of
the order is likely to have an impact on the safety and protection of:
(i)
the protected person, and
(ii)
any child with whom the protected person has a
domestic relationship,
(f)
the views of the protected person in relation to
the length of the period, and any other factors relevant to the protected
person,
(g)
whether the defendant is under the age of 18
years and, if so, the likely impact of an order of more than 12 months
duration,
(h)
any relevant circumstances of the
defendant,
(i)
any other matter the court considers
relevant.
(5)
A court may, but is not required to, have regard
to the matters set out in subsection (4) if:
(a)
the defendant consents to the period sought by
the applicant under section 49AA, or
(b)
the period for which the order is sought is not
more than the default period.
(6)
The court is not to specify a period that is more
than the default period unless the court is satisfied that the defendant has
been given a reasonable opportunity to be heard.
(7)
This section is subject to sections 73, 73A and
79C.
79BApprehended domestic violence
orders may be of indefinite duration
(1)
A court, when determining the period of an
apprehended domestic violence order under section 79A, may determine that the
order remain in force for an indefinite period (an indefinite order) if the court is
satisfied that:
(a)
the applicant has sought an indefinite order,
and
(b)
the order relates to a defendant who is 18 years
of age or older, and
(c)
there are circumstances giving rise to a
significant and ongoing risk of death or serious physical or psychological
harm to the protected person or any dependants of the protected person,
and
(d)
that risk cannot be adequately mitigated by an
order of limited duration.
(2)
In determining whether there are circumstances
giving rise to a significant and ongoing risk of death or serious physical or
psychological harm to the protected person or any dependants of the protected
person, the court must have regard to:
(a)
any prior conviction of the defendant for a
domestic violence offence, including for a contravention of any other
apprehended domestic violence order in relation to the protected person or any
other person who was the protected person under that order,
and
(b)
the conduct of the defendant in respect of the
protected person that is relevant to the risk of death or serious physical or
psychological harm, such as assaults, stalking, threats to kill or use of
weapons, and
(c)
the nature, number and timing of the incidents
involved in the conduct referred to in paragraphs (a) and
(b).
(3)
If a court makes an indefinite order, the order
remains in force until varied, revoked or set aside on
appeal.
(4)
A person against whom an indefinite order is made
may make an application for the variation or revocation of the order only by
leave of the court.
(5)
The court may grant leave to make an application
referred to in subsection (4) only if the court is satisfied that there has
been a significant change in circumstances since the relevant order was
made.
79CDuration of apprehended
domestic violence order if defendant is in prison
(1)
An apprehended domestic violence order made
against a person who is 18 years of age or older who has been sentenced to, or
is serving, a term of imprisonment for a domestic violence offence against the
protected person (the relevant
domestic violence offence) remains in force for:
(a)
the duration of that person’s sentence for
the relevant domestic violence offence (the head
sentence), and
(b)
an additional 2 years after the head sentence
ends.
(2)
A court may vary the period under subsection (1)
(b) if, after having regard to the matters specified in section 79A (4), the
court is satisfied that it is appropriate to do so.
(3)
For the purposes of subsection (1), the date on
which the apprehended domestic violence order comes into force may be a day
that is before the day on which the person starts serving the person’s
term of imprisonment.
(4)
Subsection (1) does not apply to an apprehended
domestic violence order that is specified as being of indefinite
duration.
[6]Schedule 1 Savings,
transitional and other provisions
Insert at the end of the Schedule, with
appropriate Part and clause numbering:
PartProvisions consequent on
enactment of Crimes Legislation Amendment Act
2018
Definition
In this Part:
amending
Act means the Crimes
Legislation Amendment Act 2018.
Application of amendment about
content of applications
Section 49AA, as inserted by the amending Act,
applies only to an application for an apprehended domestic violence order made
after the commencement of the section.
Amendment about variations of
orders extends to variation of existing orders
Section 73A, as inserted by the amending Act,
extends to the variation of a final apprehended domestic violence order or an
interim apprehended domestic violence order that was in force immediately
before the commencement of the section.
Amendments about duration of
orders do not apply to current applications or orders
(1)
An application for an apprehended domestic
violence order made but not finally determined before the commencement of
sections 79A–79C, as inserted by the amending Act, is to be dealt with
as if those sections had not commenced.
(2)
Sections 79A–79C, as inserted by the
amending Act, apply only to apprehended domestic violence orders made after
the commencement of those sections.
Schedules 2, 3
sch 2: Rep 1987 No
15, sec 30C.
sch 3: Rep 1987 No
15, sec 30C.
Historical
notes
See also the Crimes (Domestic
and Personal Violence) Amendment Act 2018, the Mental Health (Forensic Provisions) Amendment (Victims) Act
2018 and the Victims Rights
and Support Amendment (Motor Vehicles) Act
2018.
Table of amending
instruments
Crimes Legislation Amendment Act
2018 No 83. Assented to 28.11.2018. Date of commencement,
Schs 2 and 3 excepted: not in force; date of commencement of Sch 2 (except Sch
2 [2]), 14.1.2019, sec 2 (1) and 2018 (737) LW 14.12.2018; date of
commencement of Sch 2 [2], 14.1.2019, sec 2 (2) and 2018 (738) LW 14.12.2018;
date of commencement of Sch 3, 1.12.2018, sec 2 (3).
This Act has been amended by sec 30C of the
Interpretation Act 1987 No
15.
Table of
amendments
Schs 2,
3
Rep 1987 No
15, sec 30C.