An Act to amend the Crimes (Domestic and Personal Violence) Act 2007 with respect to the making of provisional orders and apprehended personal violence orders; and for other purposes.
1 Name of Act
This Act is the Crimes (Domestic and Personal Violence) Amendment Act 2013.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
Schedule 1 Amendments to Crimes (Domestic and Personal Violence) Act 2007 No 80 relating to provisional orders
[1] Section 3 Definitions
Insert “or senior police officer” after “authorised officer” in the definition of interim apprehended domestic violence order in section 3 (1).
[2] Section 3 (1)
Insert in alphabetical order:applicant officer—see section 25.issuing officer—see section 25.senior police officer means a police officer of or above the rank of sergeant.
[3] Section 3 (1), definition of “provisional order”
Omit the definition. Insert instead:provisional order means an interim apprehended domestic violence order or an interim apprehended personal violence order made under Part 7.
[4] Section 15 Application for making of apprehended domestic violence order by court
Insert after section 15 (2):(3) Subsection (2) does not apply to a provisional order that is made by a senior police officer and treated as an application for an order pursuant to section 29.
[5] Section 25
Omit the section. Insert instead:25 Application by telephone, facsimile or other communication device(1) A police officer may apply by telephone, facsimile or other communication device:(a) to an authorised officer or senior police officer for an interim apprehended domestic violence order, or(b) to an authorised officer for an interim apprehended personal violence order.(2) In this Act:(a) an interim apprehended domestic violence order or an interim apprehended personal violence order made on an application under this section is referred to as a provisional order, and(b) the police officer who applies for a provisional order is referred to as the applicant officer, and(c) the authorised officer or senior police officer who makes a provisional order is referred to as the issuing officer.(3) An application for a provisional order:(a) may be made at the request of the protected person or on the applicant officer’s own initiative, and(b) may be transmitted to the authorised officer or senior police officer by another person on behalf of the applicant officer if it is not practicable for the application to be made by the applicant officer by telephone, facsimile or other communication device directly to the authorised officer or senior police officer.
[6] Section 28 Making of provisional order by authorised officer
Insert “by an authorised officer” after “order” in section 28 (3).
[7] Section 28A
Insert after section 28:28A Making of provisional order by senior police officer(1) A senior police officer to whom an application is made for a provisional order may, if satisfied that there are reasonable grounds for doing so, make the provisional order.(2) However, a senior police officer may not make a provisional order in circumstances where he or she is the applicant officer.(3) The provisional order is to contain the address or facsimile number of the Local Area Commander of Police at which the defendant may serve an application for variation or revocation of the order.
[8] Section 29 Provisional order taken to be application for court order
Omit section 29 (2). Insert instead:(2) The provisional order is to contain a direction for the appearance of the defendant at a hearing of the application by an appropriate court on a date specified in the order by the issuing officer.(3) The specified date must be:(a) the next date on which the matter can be listed on a domestic violence list at the appropriate court, and(b) in any case, a date that is not more than 28 days after the making of the provisional order.
[9] Sections 30 (1), (2) and (4), 38 (1), (2) and (3), 43 (2) and 44 (2)
Omit “authorised officer” wherever occurring. Insert instead “issuing officer”.
[10] Section 33 Variation or revocation of provisional order on application of police officer
Insert “made by an authorised officer” after “provisional order” in section 33 (1).
[11] Section 33 (3)
Insert “under this section” after “provisional order”.
[12] Section 33 (7)
Insert after section 33 (6):(7) This section does not apply to the variation or revocation of a provisional order in accordance with section 33A.
[13] Section 33A
Insert after section 33:33A Variation or revocation of provisional order on application of defendant(1) A provisional order made by a senior police officer may be varied or revoked on the application of the defendant by any court that deals, or is to deal, with an application for an apprehended violence order against that defendant.(2) Despite subsection (1), an application for variation or revocation of a provisional order must be made by a police officer if the protected person or one of the protected persons under the order is a child at the time of the application.(3) Sections 73 (1), (2), (4) and (6), 74 (1) and (2), 76 (2), (4) and (5) and 77 (2)–(8) apply to the variation or revocation of a provisional order under this section in the same way as they apply to the variation or revocation of a final apprehended violence order or interim court order.(4) In addition to the requirements of section 73 (4), a provisional order is not to be varied or revoked on the application of the defendant under this section unless notice of the application has been served on the Local Area Commander of Police.(5) The applicant officer or another police officer is entitled to appear in proceedings for a variation or revocation of the provisional order under this section.
[14] Section 34A
Insert after section 34:34A Defects in interim apprehended domestic violence orders(1) This section applies if a senior police officer has, in good faith, purported to make a provisional order as an interim apprehended domestic violence order but none of the persons for whose protection the order was made has or has had a domestic relationship with the person against whom the order was sought.(2) If a provisional order has such a defect, no action lies against any police officer or any other person merely because of that defect in respect of anything done or omitted to be done by the police officer or other person in good faith in reliance on the provisional order or any ancillary property recovery order.
[15] Section 35 Prohibitions and restrictions imposed by apprehended violence orders
Omit “made by an authorised officer” from section 35 (3).
[16] Section 35 (3)
Omit “the authorised officer”. Insert instead “the issuing officer”.
[17] Section 37 Ancillary property recovery orders may be made
Omit section 37 (1) and (1A). Insert instead:(1) A property recovery order may be made by a court or authorised officer:(a) when making an apprehended domestic violence order or interim apprehended domestic violence order, or(b) in relation to an interim apprehended domestic violence order that has been made by a senior police officer.(1A) A court or authorised officer may make a property recovery order only if satisfied that:(a) the protected person has left personal property at premises which the defendant occupies, or(b) the defendant has left personal property at premises which the protected person occupies.(1B) A property recovery order may be made under this section:(a) on the motion of a court or authorised officer when making an apprehended domestic violence order or interim apprehended domestic violence order, or(b) on the application of a police officer, the protected person or the defendant.
[18] Section 81 Concurrent criminal proceedings
Insert “, and a senior police officer may make a provisional order,” after “violence order”.
[19] Sections 89 and 89A
Omit section 89. Insert instead:89 Detention of defendant for making and service of interim apprehended personal violence order(1) A police officer who is making or is about to make an application for a provisional order that is an interim apprehended personal violence order may give either of the following directions to the person against whom the order is sought:(a) that the person remain at the scene where the incident occurred that was the reason for making the application,(b) in a case where the person has left the scene of that incident—that the person remain at another place where the police officer locates the person.(2) If a person refuses or fails to comply with a direction under this section, the police officer who gave the direction or another police officer may detain the person at the scene of the incident or other place, or detain the person and take the person to a police station.89A Detention of defendant for making and service of interim apprehended domestic violence order(1) A police officer who is making or is about to make an application for a provisional order that is an interim apprehended domestic violence order may give any of the following directions to the person against whom the order is sought:(a) that the person remain at the scene where the incident occurred that was the reason for making the application,(b) in a case where the person has left the scene of that incident—that the person remain at another place where the police officer locates the person,(c) that the person go to and remain at another place that has been agreed to by the person,(d) that the person go to and remain at a specified police station,(e) that the person accompany a police officer to a police station and remain at the police station,(f) that the person accompany a police officer to another place that has been agreed to by the person, or to another place (whether or not agreed to by the person) for the purpose of receiving medical attention, and remain at that other place.(2) If a person refuses or fails to comply with a direction under this section, the police officer who gave the direction or another police officer may detain the person at the scene of the incident or other place, or detain the person and take the person to a police station.(3) If a direction is given under subsection (1) (e) or (f), the police officer may detain the person in the vehicle in which the person accompanies the police officer to the police station or other place for so long as is necessary to transport the person to the police station or other place.(4) In considering whether to detain a person under subsection (3), a police officer may have regard to the following matters:(a) the need to ensure the safety of the person for whose protection the interim apprehended domestic violence order is sought, including the need to:(i) ensure the service of the order, and(ii) remove the defendant from the scene of the incident, and(iii) prevent substantial damage to property,(b) the circumstances of the defendant,(c) any other relevant matter.
[20] Section 90 Detention of defendant for service of order or variation
Omit section 90 (2). Insert instead:(2) If a person refuses or fails to comply with a direction under this section, the police officer who gave the direction or another police officer may detain the person at the place where the person is, or detain the person and take the person to a police station, for the purpose only of serving the order or variation on the person.
[21] Sections 90A–90D
Insert after section 90:90A Period for which person may be directed to remain or be detained(1) A person may be directed under this Part to remain at a place for as long as is reasonably necessary for:(a) in the case of a direction under section 89 or 89A—the application for the provisional order to be made and the provisional order to be served on the person, or(b) in the case of a direction under section 90—a copy of the apprehended violence order or variation of the order to be served on the person.(2) A person may be detained under this Part for no longer than:(a) the time it takes for:(i) in the case of detention under section 89 or 89A—the application for the provisional order to be made and the provisional order to be served on the person, or(ii) in the case of detention under section 90—a copy of the apprehended violence order or variation of the order to be served on the person, orwhichever is the lesser.(b) 2 hours (excluding any reasonable amount of time for travel to the place or police station),90B Detention of person at police station or other place or in vehicle(1) A person who is detained under this Part at a police station or other place or in a vehicle may be detained there by any police officer.(2) As far as is reasonably practicable, a person who is detained under this Part at a police station:(a) must be given an opportunity by the person in charge of the police station to contact a friend, relative, guardian or independent person (other than a protected person), and(b) must be kept separately from any person detained at the police station in connection with the commission or alleged commission of an offence, and(c) if the person is apparently under the age of 18 years—must be kept separately from any person over that age detained at the police station, and(d) must not be detained in a cell at the police station unless it is necessary to do so, and(e) must be provided with necessary food, drink, bedding and blankets appropriate to the person’s needs.(3) As far as is reasonably practicable, a person who is detained under this Part in a place other than a police station or vehicle:(a) must be given an opportunity by the person in charge of the place to contact a friend, relative, guardian or independent person (other than a protected person), and(b) must be provided with necessary food, drink, bedding and blankets appropriate to the person’s needs.(4) As far as is reasonably practicable, a person who is to be detained under this Part in a vehicle must be given an opportunity by the person in charge of the vehicle to contact a friend, relative, guardian or independent person (other than a protected person) before being detained in the vehicle.90C Searching detained persons(1) A police officer by whom a person is detained under this Part may:(a) conduct a search of the person or of articles in the possession of the person that may include:(i) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes, socks and hat, and(ii) an examination of those items, and(b) take possession of any personal belongings found in the person’s possession.(2) A person is entitled to the return of the personal belongings taken from the person under this section when the person ceases to be detained under this Part.90D Records required to be kept(1) Records must be made in accordance with the regulations in relation to the detention of a person under this Part.(2) A person who has custody of a record required to be made by this section must retain the record for a period of 3 years after it is made.(3) A person who has the custody of a record made under this section must, when required to do so by a person authorised by the Minister for the purposes of this subsection, make it available for inspection by that person.(4) This section does not require a person to make a record of a matter in relation to the detention or search of a person, if another person has already made a record of that matter as required by this section.
Schedule 2 Amendments to Crimes (Domestic and Personal Violence) Act 2007 No 80 relating to apprehended personal violence orders
[1] Section 21 Referral of matters to mediation
Omit section 21 (1). Insert instead:(1) If an application for an apprehended personal violence order is made to a court, the court:(a) when considering whether to make the order—is to refer the protected person and the defendant for mediation under the Community Justice Centres Act 1983 unless it is satisfied that there is good reason not to do so, and(b) at any other time—may refer the protected person and the defendant for mediation under that Act.
[2] Section 21 (2)
Omit “A matter is not to be referred to mediation under this section if the court is of the opinion that:”.Insert instead “Without limiting subsection (1), in determining whether there is good reason not to refer a matter to mediation, the court is to consider whether:”.
[3] Section 21 (2A)
Insert after section 21 (2):(2A) The existence of any one or more of the factors referred to in subsection (2) does not prevent a court from referring a matter to mediation.
[4] Section 24A
Insert after section 24:24A Referral of matters to mediationSection 21 applies in relation to an interim apprehended personal violence order in the same way as it applies in relation to an apprehended personal violence order.
[5] Section 49A
Insert after section 49:49A False or misleading applications for apprehended personal violence orderA person is guilty of an offence if:(a) the person makes a statement (whether orally, in a document or in any other way), and(b) the person does so knowing that the statement is false or misleading in a material particular, and(c) the statement is made to a Registrar or Magistrate for the purpose of making an application for an apprehended personal violence order under section 18.Maximum penalty: Imprisonment for 12 months or 10 penalty units, or both.
[6] Section 53 Discretion to refuse to issue process in apprehended personal violence order matters
Omit “the court” from section 53 (8). Insert instead “a Magistrate”.