2016
2016
2016-12-04
act
government
publicspecial
act.reprint
act-2016-054
allinforce
2016-05-05
2016-05-05
0
2016-12-04
act-1987-015
2016
none
act-2016-033
6c7141a3-16af-4409-95ea-98e85b927c4d
3b01243d-4473-4c5f-bb6a-45f742df53ba
Repeal:
This Act was repealed by sec 30C of the Interpretation Act 1987 No 15 with
effect from 4.12.2016.
An Act to make miscellaneous amendments to the
Crimes (Domestic and Personal Violence) Act
2007 and Chapter 9A of the Coroners Act
2009 to give effect to the recommendations arising from
the statutory reviews of that Act and Chapter; and for other
purposes.
1Name of
Act
This Act is the Crimes (Domestic
and Personal Violence) Amendment (Review) Act
2016.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
Schedule 1Amendment of Crimes (Domestic and Personal Violence) Act 2007
No 80
[1]Section 3
Definitions
Insert in alphabetical order in section 3
(1):
Children’s Magistrate includes
the President of the Children’s Court.
parent has the same meaning as in
the Children and Young Persons (Care and Protection) Act
1998.
[2]Section 4 Meaning of
“personal violence offence”
Omit “44,” from section 4 (a). Insert
instead “43, 43A, 44, 45, 45A,”.
[3]Section 4
(a)
Insert “73, 78A,” after
“66EA,”.
[4]Section 4
(a)
Insert “110,” after
“93GA,”.
[5]Section 4
(b1)
Insert after section 4 (b):
(b1)
an offence under section 109, 111, 112, 113, 114,
115 or 308C of the Crimes Act 1900,
but only if the serious indictable offence or indictable offence referred to
in those sections is an offence referred to in paragraph (a) or (b),
or
[6]Section 4
(c)
Omit “or (b)”. Insert instead
“, (b) or (b1)”.
[7]Section 5 Meaning of
“domestic relationship”
Insert at the end of the section after the
note:
(2)
Two persons also have a domestic
relationship with each other for the purposes of this Act if
they have both had a domestic relationship of a kind set out in subsection (1)
(a), (b) or (c) with the same person.
Note—
A woman’s ex-partner and current partner
would therefore have a domestic relationship with each other for the purposes
of this Act even if they had never met.
[8]Section 9 Objects of Act in
relation to domestic violence
Insert after section 9 (3) (f):
(f1)
the particular impact of domestic violence on
Aboriginal persons and Torres Strait Islanders, persons from culturally and
linguistically diverse backgrounds, persons from gay, lesbian, bisexual,
transgender and intersex communities, older persons and persons with
disabilities, and
[9]Section
11
Omit the section. Insert instead:
11Meaning of “domestic
violence offence”
(1)
In this Act, domestic
violence offence means an offence committed by a person
against another person with whom the person who commits the offence has (or
has had) a domestic relationship, being:
(a)
a personal violence offence,
or
(b)
an offence (other than a personal violence
offence) that arises from substantially the same circumstances as those from
which a personal violence offence has arisen, or
(c)
an offence (other than a personal violence
offence) the commission of which is intended to coerce or control the person
against whom it is committed or to cause that person to be intimidated or
fearful (or both).
(2)
In this section, offence includes an offence under
the Criminal Code Act 1995 of the
Commonwealth.
[10]Section 16 Court may make
apprehended domestic violence order
Omit “personal violence offence” from
section 16 (1) (a).
Insert instead “domestic violence
offence”.
[11]Section 16 (2) (c)
(i)
Omit “at any time”. Insert instead
“on more than one occasion”.
[12]Section 16 (2)
(d)
Insert at the end of section 16 (2) (c)
(iii):
, or
(d)
the court is satisfied on the balance of
probabilities that the person has reasonable grounds to fear the commission of
a domestic violence offence against the person.
[13]Section 16
(2A)
Insert after section 16 (2):
(2A)
An apprehended domestic violence order that is
made in reliance on subsection (2) (d) cannot impose prohibitions or
restrictions on the behaviour of the defendant other than those prohibitions
that are taken to be specified in the order by section
36.
[14]Section
32
Omit the section. Insert instead:
32Duration
(1)
A provisional order remains in force
until:
(a)
it is revoked, or
(b)
it ceases to have effect under subsection (2),
or
(c)
the application for a final apprehended violence
order is withdrawn or dismissed,
whichever first occurs.
(2)
If an interim court order or final apprehended
violence order is made in respect of a provisional order (whether with or
without variation), the provisional order ceases to have effect:
(a)
in a case where the defendant is present at
court—when the interim court order or final apprehended violence order
is made, or
(b)
in any other case—when the defendant is
served in accordance with this Act with a copy of the interim court order or
final apprehended violence order.
[15]Section 33 Variation or
revocation of provisional order on application of police
officer
Omit section 33 (6).
[16]Section 35 Prohibitions and
restrictions imposed by apprehended violence orders
Insert after section 35 (2) (c):
(c1)
prohibiting or restricting the defendant from
locating or attempting to locate the protected
person,
[17]Section
36
Omit the section. Insert instead:
36Prohibitions taken to be
specified in every apprehended violence order
Every apprehended violence order is taken to
specify that the defendant is prohibited from doing any of the
following:
(a)
assaulting or threatening the protected person or
a person with whom the protected person has a domestic
relationship,
(b)
stalking, harassing or intimidating the protected
person or a person with whom the protected person has a domestic
relationship,
(c)
intentionally or recklessly destroying or
damaging any property that belongs to, or is in the possession of, the
protected person or a person with whom the protected person has a domestic
relationship.
[18]Section 37 Ancillary property
recovery orders may be made
Insert after section 37 (1B):
(1C)
An application for a property recovery order made
by a protected person or a defendant must include details of the
following:
(a)
any relevant order with respect to property made
under the Family Law Act 1975 of the Commonwealth
(a family
law property order) of which the applicant is
aware,
(b)
any pending application for a family law property
order of which the applicant is aware.
(1D)
Before making a property recovery order, a court
or authorised officer is to:
(a)
make such inquiries of the parties about any
relevant family law property orders as the court or officer considers to be
appropriate, and
(b)
if any such order is brought to the attention of
the court or authorised officer, take the order into
consideration.
[19]Section
39
Omit the section. Insert instead:
39Final order to be made on
guilty plea or guilt finding for serious offence
(1)
If a person pleads guilty to, or is found guilty
of, a serious offence, the court hearing the proceedings must make a final
apprehended violence order for the protection of the person against whom the
offence was committed regardless of whether an interim apprehended violence
order has been made or whether an application for an apprehended violence
order has been made.
(2)
However, the court need not make a final
apprehended violence order if it is satisfied that it is not required (for
example, because a final apprehended violence order has already been made
against the person).
(3)
In this section:
court includes the District
Court.
serious
offence has the same meaning as in section
40.
[20]Section 40 Interim apprehended
violence order must be made on charge for certain
offences
Omit section 40 (4). Insert instead:
(4)
The transcript of proceedings and any evidence
admitted in the District Court or the Supreme Court in respect of a serious
offence is admissible in the Local Court or Children’s Court for the
purposes of determining any one or more of the following:
(a)
an application for the variation or revocation of
an interim court order made under this section in respect of the serious
offence,
(b)
an application for a final apprehended violence
order to be made in respect of any such interim court
order,
(c)
an application for the variation or revocation of
any such final apprehended violence order.
(4A)
In this section court includes the District Court
and the Supreme Court.
[21]Section
40A
Insert after section 40:
40AApprehended violence order may
be made in care proceedings
(1)
The Children’s Court may, during care
proceedings, make an apprehended violence order for the protection of:
(a)
the child to whom the care proceedings relate,
and
(b)
any person who is a relative of, or who resides
on the same property as, the child,
or may vary or revoke any existing order that protects
any of those persons.
(2)
The Children’s Court may make, vary or
revoke an order on the application of a party to the care proceedings or on
its own motion if the Court considers that the circumstances justify making,
varying or revoking the order.
(3)
The Children’s Court is not to make or vary
an order under this section that protects a person if the Court is aware that
the defendant is subject to criminal proceedings before another court and
those criminal proceedings arose out of some or all of the circumstances that
justify the making of the order.
(4)
Before making, varying or revoking an order under
this section, the Children’s Court is to notify the Commissioner of
Police and the Secretary of the Department of Family and Community Services
and give the Commissioner and Secretary standing to appear in the
proceedings.
(5)
Before varying or revoking a police-initiated
order under this section the Children’s Court is to notify the
Commissioner of Police and give the Commissioner standing to appear in the
proceedings.
(6)
Sections 48 (3) and 72B do not apply to an
application made under subsection (2).
(7)
The parties to the care proceedings and the
defendant against whom the apprehended violence order is proposed to be made
all have standing to appear in respect of the making of the apprehended
violence order.
(8)
Subject to the regulations, section 91 (Appeals)
of the Children and Young Persons (Care and
Protection) Act 1998 applies to an apprehended violence
order made under this section.
(9)
In this section:
care
proceedings has the same meaning as in the Children and Young Persons (Care and Protection) Act
1998.
child includes a young person within
the meaning of the Children and Young Persons (Care and
Protection) Act 1998.
police-initiated order has the same
meaning as in section 72.
relative of a child has the same
meaning as in the Children and Young Persons (Care and
Protection) Act 1998.
reside on
a property has the same meaning as in the Child Protection (Working with Children) Act
2012.
[22]Section
41A
Insert after section 41:
41AQuestioning child witness in
apprehended domestic violence order proceedings
(1)
A child who appears as a witness in any of the
following proceedings cannot be questioned by a defendant directly but only by
the defendant’s Australian legal practitioner or other Australian legal
practitioner or a suitable person appointed by the court:
(a)
proceedings in which an apprehended domestic
violence order is sought or proposed to be made,
(b)
proceedings in relation to an application for the
variation or revocation of an apprehended domestic violence
order.
(2)
This section applies in addition to the
protections set out in section 41.
[23]Section 48 Making of
application for an order
Omit section 48 (3). Insert instead:
(3)
Despite subsection (2), an application for an
order may be made only by a police officer if, at the time the application is
made, each person for whose protection the order would be made is a
child.
[24]Section 48
(4A)
Insert after section 48 (4):
(4A)
A court may refer an application for an order to
the Commissioner of Police at any time if:
(a)
the applicant is not a police officer,
and
(b)
a person for whose protection the order would be
made is a child at the time of the application, and
(c)
the court considers that it would be in the best
interests of the child for a police officer to appear in the
application.
[25]Section 50 Commencement of
proceedings by application notice
Omit section 50 (2) and (3). Insert
instead:
(2)
The regulations may make provision for or with
respect to the form of an application notice for an apprehended violence order
under this Division or for the information to be included in the application
notice.
(3)
Without limiting subsection (2), the regulations
may require inclusion of the following information in an application notice
for an apprehended personal violence order:
(a)
whether there is an existing commercial
relationship between the applicant and the defendant,
(b)
whether there is an outstanding debt owed by the
defendant to the applicant or by the applicant to the
defendant,
(c)
whether there have been previous civil or
criminal proceedings between the applicant and the
defendant,
(d)
that it is an offence under this Act to make a
statement in the application that the applicant knows is false or misleading
in a material particular.
(4)
Without limiting subsection (2), the regulations
may require inclusion of the following information in an application notice
for an apprehended domestic violence order:
(a)
whether there are any current proceedings under
the Family Law Act 1975 of the Commonwealth
that may be relevant to the application,
(b)
whether any property orders have been made or are
being sought under that Act that may be relevant to the application and the
terms of those orders,
(c)
if a parenting order has been made under that Act
and the application may affect that order—the basis on which the
parenting order was made and the reasons why the applicant believes that the
court (to which the application is being made) should
intervene.
[26]Section
57A
Insert after section 57:
57AProcedure if party not present
on hearing date
(1)
In this section, party to application proceedings
means the person for whose protection the relevant order is sought or the
defendant.
(2)
If one or more parties to application proceedings
are not present on the day and at the time and place set for the hearing of
the matter (including a day to which the hearing has been adjourned), the
court may proceed to hear and determine the matter in the absence of those
parties if the court is satisfied that:
(a)
each absent party had reasonable notice of the
first return date or the date, time and place of the hearing,
and
(b)
it is otherwise in the interests of justice to do
so.
(3)
Before determining the matter, the court must
consider the grounds set out in the application notice (if any) and any
written statement provided to the court by a police
officer.
[27]Sections
72–72D
Omit section 72. Insert instead:
72Definitions
In this Division:
application means an application for
the variation or revocation of a final apprehended violence order or interim
court order.
interested party, in relation to an
order, means each of the following:
(a)
each protected person under the order (whether or
not the protected person made the application for the original
order),
(b)
each guardian of a protected person under the
order, in the case of a protected person in respect of whom a guardianship
order within the meaning of the Guardianship Act
1987 is in force,
(c)
in the case of a protected person who is a
child:
(i)
each parent of a protected person under the
order, and
(ii)
the Secretary of the Department of Family and
Community Services,
(d)
the defendant.
police-initiated order means a final
apprehended violence order or an interim court order where:
(a)
the application for the order was made by a
police officer, or
(b)
a police officer was a party to the application
proceedings for the order.
72AMaking of
application—general
(1)
An application may be made to a court at any
time.
(2)
An application may be made only by a police
officer or by an interested party in relation to the
order.
(3)
An application must set out the grounds on which
the application is made and, in the case of a variation, the nature of the
variation sought. This subsection does not limit the powers of the
court.
72BMaking of
application—police-initiated order where protected person is
child
(1)
An interested party in relation to a
police-initiated order requires leave of a court to make an application to the
court in respect of the order if the protected person (or one of the protected
persons) under the order is a child.
(2)
The court may grant leave for the interested
party to make the application if the court is satisfied of any one or more of
the following:
(a)
that there has been a significant change in
circumstances since the order was made (or was last
varied),
(b)
that the application is proposed to be made by
the Secretary of the Department of Family and Community Services on the basis
that a care plan (within the meaning of the Children and
Young Persons (Care and Protection) Act 1998) for the
child is inconsistent with the police-initiated order,
(c)
that it is otherwise in the interests of justice
to do so.
(3)
The court is not to grant leave if it is of the
opinion that the application, if successful, would significantly increase the
risk of harm to the child.
72CCommissioner must be notified
if application relates to police-initiated order
(1)
The court must decline to hear an application in
respect of a police-initiated order unless:
(a)
the application is made by a police officer,
or
(b)
the court is satisfied that notice of the
application has been served on the Commissioner of Police in accordance with
the rules of the court.
(2)
The Commissioner of Police has standing to appear
in proceedings for the variation or revocation of any police-initiated
order.
72DNotification of application if
protected person is child
The court may notify an application to the
Commissioner of Police and any interested party and give the Commissioner and
interested party standing to appear in proceedings if the protected person (or
one of the protected persons) under the order is a child at the time of the
application and the court considers it to be in the best interests of the
child to do so.
[28]Section 73 Variation or
revocation of final apprehended violence orders and interim court
orders
Omit “for variation or revocation of a
final apprehended violence order or interim court order” from section 73
(3).
Insert instead “in respect of an
order”.
[29]Section 74 Variation or
revocation of final apprehended violence orders and interim court orders where
more than one protected person
Omit “for variation or revocation of”
from section 74 (3). Insert instead “in respect
of”.
[30]Section 74,
note
Omit the note.
[31]Section 78 Orders made with
consent of parties
Insert after section 78 (3):
(4)
In this section:
court includes the District
Court.
[32]Section 87
Forms
Omit “or Senior Children’s
Magistrate” from section 87 (1).
Insert instead: “of the Local Court or the
President of the Children’s Court”.
[33]Section
92
Insert after section 91:
92Jurisdiction of Supreme Court
under this Act
The jurisdiction conferred on the Supreme Court
by this Act is conferred on the Court in its criminal
jurisdiction.
[34]Sections 99 and
99A
Omit section 99. Insert instead:
99Costs
(1)
In this section:
professional costs means costs
relating to professional expenses and disbursements (including
witnesses’ expenses) in respect of proceedings before a court (but not
court fees payable to a court).
(2)
Costs, other than professional costs, are not to
be awarded in apprehended violence order proceedings.
(3)
A court may, subject to section 99A, award
professional costs in apprehended violence order proceedings to the applicant
for the order or decision concerned or the defendant in accordance with this
section.
(4)
If professional costs are awarded against a
person under this section, the costs must be paid by the person to the
registrar of the court, for payment to:
(a)
the defendant, in the case of costs awarded
against an applicant, or
(b)
the applicant, in the case of costs awarded
against a defendant.
(5)
A court may make an order as to professional
costs at the end of apprehended violence order proceedings or following the
adjournment of the proceedings.
(6)
An order as to professional costs may be made
following the adjournment of the proceedings only if the court is satisfied
that the other party has incurred additional costs because of the unreasonable
conduct or delays of the party against whom the order is
made.
(7)
An order as to professional costs made following
the adjournment of proceedings may be made whatever the result of the
proceedings and may provide for the determination of the amount at the end of
the proceedings.
(8)
An order as to professional costs may specify the
amount of any professional costs payable or may specify that it is to be the
amount as agreed or assessed.
(9)
The State is to indemnify a police officer, who
acts in his or her capacity as a police officer in apprehended violence order
proceedings, for any professional costs awarded against the police officer
personally.
(10)
This section applies to apprehended violence
order proceedings, including apprehended violence order proceedings conducted
in the absence of one or more of the parties.
99ALimitations on professional
costs being awarded
(1)
A court cannot, in apprehended violence order
proceedings, award professional costs against an applicant who is a protected
person in respect of the order unless satisfied that the application was
frivolous or vexatious.
(2)
A court cannot, in apprehended domestic violence
order proceedings, award professional costs against an applicant who is a
police officer unless satisfied that:
(a)
the applicant made the application knowing it
contained matter that was false or misleading in a material particular,
or
(b)
the applicant has deviated from the reasonable
case management of the proceedings so significantly as to be
inexcusable.
(3)
The mere fact that a protected person does any
one or more of the following in relation to apprehended domestic violence
order proceedings does not give rise to a ground to award costs against an
applicant who is a police officer and who made the application in good
faith:
(a)
indicating that he or she will give unfavourable
evidence,
(b)
indicating that he or she does not want an
apprehended domestic violence order or that he or she has no
fears,
(c)
giving unfavourable evidence or failing to attend
to give evidence.
(4)
This section has effect despite section 99 or any
other provision of this or any other Act or law.
(5)
In this section:
apprehended domestic violence order
proceedings means proceedings under this Act in relation to
an apprehended domestic violence order or an application for an apprehended
domestic violence order.
professional costs has the same
meaning as in section 99.
[35]Schedule 1 Savings,
transitional and other provisions
Insert after Part 3:
Part 4Provisions consequent on
enactment of Crimes (Domestic and Personal
Violence) Amendment (Review) Act
2016
10Definition
In this Part:
amending
Act means the Crimes (Domestic
and Personal Violence) Amendment (Review) Act
2016.
11Amendments do not extend to
current applications
(1)
In this clause:
application means an application for
a final apprehended violence order or an application within the meaning of
section 72.
(2)
The amendment of a provision of the Act by the
amending Act does not affect an application made but not finally dealt with
before the amendment nor does it affect any proceedings arising from any such
application even if those proceedings take place after the amendment and, in
any such case, the provision as in force immediately before its amendment is
taken to continue to apply.
(3)
Subclause (2) is subject to the other provisions
of this Part and the regulations.
12Duration of provisional
orders
Section 32, as substituted by the amending Act,
extends to a provisional order that is in force immediately before that
substitution.
13Orders made on guilty plea or
finding of guilt
Section 39, as substituted by the amending Act,
applies in respect of a guilty plea or finding of guilt in proceedings even if
the proceedings commenced before that substitution.
14Evidence of serious offence
admissible
The transcript of proceedings and any evidence
admitted in the District Court or the Supreme Court in respect of a serious
offence is admissible in the Local Court or Children’s Court for the
purposes of determining an application referred to in section 40 (4) even if
the proceedings to which the transcript or evidence relates took place before
the substitution of section 40 (4) by the amending Act.
15Orders made during care
proceedings
Section 40A applies in respect of care
proceedings (and any appeal arising from those proceedings) even if the care
proceedings were commenced before the commencement of that
section.
16Questioning child
directly
Section 41A applies in respect of proceedings
even if the proceedings were commenced before the commencement of that
section. However, this clause does not cause evidence given before that
commencement to be inadmissible.
17Costs
(1)
Section 99, as substituted by the amending Act,
does not apply to proceedings that commenced before that substitution and that
section, as in force immediately before its substitution, continues to apply
to any such proceedings as if it had not been
substituted.
(2)
Section 99A does not apply to proceedings that
commenced before the commencement of that section.
sch 1: Am 2016 No 54,
Sch 1.5.
Schedule 2
sch 2: Rep 1987 No
15, sec 30C.
Historical
notes
Table of amending
instruments
Crimes (Domestic
and Personal Violence) Amendment (Review) Act 2016 No 33.
Assented to 28.6.2016. Date of commencement, Sch 2 excepted, 3.12.2016, sec 2
and 2016 (716) LW 1.12.2016; date of commencement of Sch 2, 22.8.2016, sec 2
and 2016 (513) LW 19.8.2016. This Act has been amended as follows:
2016
No
54
Justice Portfolio
Legislation (Miscellaneous Amendments) Act 2016. Assented
to 25.10.2016.
Date of commencement, assent, sec
2.
This Act has been amended by sec 30C of the
Interpretation Act 1987 No
15.
Table of
amendments
Sch
1
Am 2016 No
54, Sch 1.5.
Sch
2
Rep 1987 No
15, sec 30C.