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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Crimes Amendment (Apprehended
Violence) Bill 1999
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Crimes Act 1900 No 40 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE COUNCIL, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Parliaments
egislative Council
1999
New South Wales
Crimes Amendment (Apprehended
Violence) Bill 1999
Act No , 1999
An Act to amend the Crimes Act 1900 in relation to apprehended violence orders,
the offence of stalking or intimidation, and associated matters; and for other
purposes.
Clause 1 Crimes Amendment (Apprehended Violence) Bill 1999
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Crimes Amendment (Apprehended Violence) Act 1999.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Crimes Act 1900 No 40
The Crimes Act 1900 is amended as set out in Schedule 1.
Page 2
Crimes Amendment (Apprehended Violence) Bill 1999
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 4 Definitions
Omit the definition of Domestic violence offence in section 4 (1).
Insert instead:
Domestic violence offence means a personal violence offence
committed against:
(a) a person who is or has been married to the person who
commits the offence, or
(b) a person who has or has had a de facto relationship,
within the meaning of the Property (Relationships) Act
1984, with the person who commits the offence, or
(c) a person who has or has had an intimate personal
relationship with the person who commits the offence,
whether or not the intimate relationship involves or has
involved a relationship of a sexual nature, or
(d) a person who is living or has lived in the same
household or other residential facility as the person who
commits the offence, or
(e) a person who has or has had a relationship involving his
or her dependence on the ongoing paid or unpaid care
of the person who commits the offence, or
(f) a person who is or has been a relative (within the
meaning of section 4 (6)) of the person who commits
the offence.
[2] Section 4 (1)
Omit "or 61O" from paragraph (a) of the definition of Personal violence
offence.
Insert instead ", 61O, 195, 196, 198, 199, 200 or 562I".
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Schedule 1 Amendments
[3] Section 4 (6)
Omit the subsection. Insert instead:
(6) For the purposes of the definition of Domestic violence
offence, a person is a relative of a person (the other person):
(a) if the person is:
(i) a father, mother, grandfather, grandmother, step-
father, step-mother, father-in-law or mother-in-
law, or
(ii) a son, daughter, grandson, grand-daughter, step-
son, step-daughter, son-in-law or daughter-in-
law, or
(iii) a brother, sister, half-brother, half-sister, brother-
in-law or sister-in-law, or
(iv) an uncle, aunt, uncle-in-law or aunt-in-law, or
(v) a nephew or niece, or
(vi) a cousin,
of the other person, or
(b) where the person is in a de facto relationship, within the
meaning of the Property (Relationships) Act 1984, with
somebody else (the person's partner)--if the other
person is:
(i) a father, mother, grandfather, grandmother, step-
father or step-mother, or
(ii) a son, daughter, grandson, grand-daughter, step-
son or step-daughter, or
(iii) a brother, sister, half-brother or half-sister, or
(iv) an uncle or aunt, or
(v) a nephew or niece, or
(vi) a cousin,
of the person's partner.
[4] Section 562A Definitions
Insert in alphabetical order in section 562A (1):
apprehended domestic violence order means an order under
Division 1A.
apprehended personal violence order means an order under
Division 1B.
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Amendments Schedule 1
apprehended violence order means:
(a) an apprehended domestic violence order, or
(b) an apprehended personal violence order.
authorised justice means (except in section 562H):
(a) a Magistrate, or
(b) a justice of the peace who is employed in the Attorney
General's Department.
[5] Section 562A (1)
Omit the definitions of interstate restraint order, registered interstate
restraint order, and the appropriate court.
[6] Section 562A (3)
Omit the subsection. Insert instead:
(3) For the purposes of this Part, a person has a domestic
relationship with another person if the person:
(a) is or has been married to the other person, or
(b) has or has had a de facto relationship, within the
meaning of the Property (Relationships) Act 1984, with
the other person, or
(c) has or has had an intimate personal relationship with the
other person, whether or not the intimate relationship
involves or has involved a relationship of a sexual
nature, or
(d) is living or has lived in the same household or other
residential facility as the other person, or
(e) has or has had a relationship involving his or her
dependence on the ongoing paid or unpaid care of the
other person, or
(f) is or has been a relative (within the meaning of section
4 (6)) of the other person.
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Schedule 1 Amendments
[7] Section 562AB
Omit the section. Insert instead:
562AB Stalking or intimidation with intent to cause fear of physical or
mental harm
(1) A person who stalks or intimidates another person with the
intention of causing the other person to fear physical or mental
harm is liable to imprisonment for 5 years, or to a fine of 50
penalty units, or both.
(2) For the purposes of this section, causing a person to fear
physical or mental harm includes causing the person to fear
physical or mental harm to another person with whom he or
she has a domestic relationship.
(3) For the purposes of this section, a person intends to cause fear
of physical or mental harm if he or she knows that the conduct
is likely to cause fear in the other person.
(4) For the purposes of this section, the prosecution is not required
to prove that the person alleged to have been stalked or
intimidated actually feared physical or mental harm.
[8] Part 15A, Divisions 1A and 1B
Insert after section 562AB:
Division 1A Apprehended domestic violence orders
562AC Objects of Division
(1) The objects of this Division are:
(a) to ensure the safety and protection of all persons who
experience domestic violence, and
(b) to reduce and prevent violence between persons who
are in a domestic relationship with each other, and
(c) to enact provisions that are consistent with certain
principles underlying the Declaration on the Elimination
of Violence against Women.
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Amendments Schedule 1
(2) This Division aims to achieve its objects by:
(a) empowering courts to make apprehended domestic
violence orders to protect people from domestic
violence, and
(b) ensuring that access to courts is as speedy, inexpensive,
safe and simple as is consistent with justice.
(3) In enacting this Division, Parliament:
(a) recognises that domestic violence, in all its forms, is
unacceptable behaviour, and
(b) recognises that domestic violence is predominantly
perpetrated by men against women and children, and
(c) recognises that domestic violence occurs in all sectors
of the community.
(4) A court that, or person who, exercises any power conferred by
or under this Part in relation to domestic violence must be
guided in the exercise of that power by the objects of this
Division.
562AD Application for ADVO
(1) An application may be made, by way of complaint, for an
apprehended domestic violence order for the protection of:
(a) a person against another person with whom he or she
has a domestic relationship, or
(b) two or more persons against another person with whom
at least one of those persons has a domestic relationship.
(2) If the person or all of the persons for whose protection the
order would be made does or do not have a domestic
relationship with the person against whom it is sought, the
complaint is to be treated as an application for an apprehended
personal violence order.
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Schedule 1 Amendments
562AE Court may make ADVO
(1) A court may, on complaint, make an apprehended domestic
violence order if it is satisfied on the balance of probabilities
that a person who has a domestic relationship with another
person has reasonable grounds to fear and in fact fears:
(a) the commission by the other person of a personal
violence offence against the person, or
(b) the engagement of the other person in conduct
amounting to harassment or molestation of the person,
being conduct that, in the opinion of the court, is
sufficient to warrant the making of the order, or
(c) the engagement of the other person in conduct in which
the other person:
(i) intimidates the person or a person with whom
the person has a domestic relationship, or
(ii) stalks the person,
being conduct that, in the opinion of the court, is
sufficient to warrant the making of the order.
(2) Despite subsection (1), it is not necessary for the court to be
satisfied that the person for whose protection the order would
be made in fact fears that such an offence will be committed,
or that such conduct will be engaged in, if:
(a) the person is under the age of 16 years, or
(b) the person is, in the opinion of the court, suffering from
an appreciably below average general intelligence
function.
(3) For the purposes of this section, conduct may amount to
harassment or molestation of a person even though:
(a) it does not involve actual or threatened violence to the
person, or
(b) it consists only of actual or threatened damage to
property belonging to, in the possession of, or used by
the person.
(4) An order made under this section may impose such
prohibitions or restrictions on the behaviour of the defendant as
appear necessary or desirable to the court.
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Amendments Schedule 1
562AF Summons for appearance or arrest of defendant in ADVO
matters
(1) If a complaint for an apprehended domestic violence order is
made, an authorised justice may issue:
(a) a summons for the appearance of the defendant, or
(b) a warrant for the arrest of the defendant.
(2) The authorised justice must issue a summons for the
appearance of the defendant, unless the authorised justice
issues a warrant for the arrest of the defendant.
(3) The authorised justice may issue a warrant for the arrest of the
defendant even though the defendant is not alleged to have
committed an offence.
(4) The authorised justice must issue a warrant for the arrest of the
defendant if it appears to the authorised justice that the personal
safety of the person for whose protection the order is sought
will be put at risk unless the defendant is arrested for the
purpose of being brought before the court.
(5) A warrant may not be executed more than 12 months after the
date on which it is issued, unless the court otherwise orders
before the end of the 12-month period.
(6) If the court is satisfied, by evidence on oath or by affidavit, that
it is not reasonably practicable to serve a copy of a summons
as provided by law, service of the copy of the summons may be
effected in such other manner as the court directs.
562AG Non-inclusion of protected person's residential address in ADVO
or complaint for ADVO
(1) The address at which the protected person resides must not be
stated in the complaint for an apprehended domestic violence
order (or the application for an order relating to such an order),
unless:
(a) where the protected person is of or above the age of 16
years--the protected person consents to the address
being included in the complaint, or
(b) where the complaint is made by a police officer--the
police officer is satisfied that the defendant knows the
address.
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Schedule 1 Amendments
(2) The address at which the protected person resides, or intends to
reside, must not be stated in an apprehended domestic violence
order (or an order relating to such an order), unless the court is
satisfied that:
(a) the defendant knows the address, or
(b) it is necessary to state the address in order to achieve
compliance with the order and the personal safety of the
protected person would not be seriously threatened, or
damage would not be likely to be caused to any
property of the protected person, by stating the address,
or
(c) where the protected person is of or above the age of 16
years--the protected person consents to the address
being stated in the order.
(3) In this section:
court includes the Clerk of a Local Court or the Registrar of
the Children's Court.
protected person means the person for whose protection an
apprehended domestic violence order is made or sought.
Division 1B Apprehended personal violence orders
562AH Application for APVO
(1) An application may be made, by way of complaint, for an
apprehended personal violence order for the protection of one
or more persons against another person.
(2) If the person (or at least one of the persons) for whose
protection the order would be made has a domestic relationship
with the person against whom it is sought, the complaint is to
be treated as a complaint for an apprehended domestic violence
order.
562AI Court may make APVO
(1) A court may, on complaint, make an apprehended personal
violence order if it is satisfied on the balance of probabilities
that a person has reasonable grounds to fear and in fact fears:
(a) the commission by the other person of a personal
violence offence against the person, or
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Crimes Amendment (Apprehended Violence) Bill 1999
Amendments Schedule 1
(b) the engagement of the other person in conduct
amounting to harassment or molestation of the person,
being conduct that, in the opinion of the court, is
sufficient to warrant the making of the order, or
(c) the engagement of the other person in conduct in which
the other person:
(i) intimidates the person, or
(ii) stalks the person,
being conduct that, in the opinion of the court, is
sufficient to warrant the making of the order.
(2) Despite subsection (1), it is not necessary for the court to be
satisfied that the person for whose protection the order would
be made in fact fears that such an offence will be committed,
or that such conduct will be engaged in, if:
(a) the person is under the age of 16 years, or
(b) the person is, in the opinion of the court, suffering from
an appreciably below average general intelligence
function.
(3) For the purposes of this section, conduct may amount to
harassment or molestation of a person even though:
(a) it does not involve actual or threatened violence to the
person, or
(b) it consists only of actual or threatened damage to
property belonging to, in the possession of, or used by
the person.
(4) An order made under this section may impose such
prohibitions or restrictions on the behaviour of the defendant as
appear necessary or desirable to the court.
562AJ Summons for appearance or arrest of defendant in APVO
matters
(1) If a complaint for an apprehended personal violence order is
made, an authorised justice may issue:
(a) a summons for the appearance of the defendant, or
(b) a warrant for the arrest of the defendant.
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Schedule 1 Amendments
(2) If the complaint was made by a police officer, the authorised
justice must issue a summons for the appearance of the
defendant, unless the authorised justice issues a warrant for the
arrest of the defendant.
(3) The authorised justice may issue a warrant for the arrest of the
defendant even though the defendant is not alleged to have
committed an offence.
(4) The authorised justice must issue a warrant for the arrest of the
defendant if it appears to the authorised justice that the personal
safety of the person for whose protection the order is sought
will be put at risk unless the defendant is arrested for the
purpose of being brought before the court.
(5) A warrant may not be executed more than 12 months after the
date on which it is issued, unless the court otherwise orders
before the end of the 12-month period.
(6) If the court is satisfied, by evidence on oath or by affidavit, that
it is not reasonably practicable to serve a copy of a summons
as provided by law, service of the copy of the summons may be
effected in such other manner as the court directs.
562AK Discretion to refuse to issue process in APVO matters
(1) An authorised justice has a discretion to refuse to issue process
where a complaint for an apprehended personal violence order
is made, unless the complaint was made by a police officer.
(2) The authorised justice may exercise the discretion in
accordance with this section or may decline to exercise it. The
authorised justice:
(a) exercises the discretion by deciding to issue neither a
summons nor a warrant referred to in section 562AJ, or
(b) is taken to decline to exercise the discretion by deciding
to issue such a summons or warrant.
(3) The authorised justice may exercise the discretion if the
authorised justice is satisfied that the complaint is frivolous,
vexatious, without substance or has no reasonable prospect of
success.
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(4) There is a presumption against exercising the discretion if the
complaint discloses allegations of:
(a) a personal violence offence, or
(b) an offence under section 562AB, or
(c) harassment relating to the complainant's race, religion,
homosexuality, transgender status, HIV/AIDS or other
disability.
(5) In determining whether or not to exercise the discretion, the
authorised justice must take the following matters into account:
(a) the nature of the allegations,
(b) whether the matter is amenable to mediation or other
alternative dispute resolution,
(c) whether the parties have previously attempted to resolve
the matter by mediation or other means,
(d) the availability and accessibility of mediation or other
alternative dispute resolution services,
(e) the willingness and capacity of each party to resolve the
matter otherwise than through a complaint for an
apprehended personal violence order,
(f) the relative bargaining powers of the parties,
(g) whether the complaint is in the nature of a cross
application,
(h) any other matters that the authorised justice considers
relevant.
(6) If the authorised justice exercises the discretion, the authorised
justice must record the reasons for doing so in writing.
[9] Section 562B Court may make apprehended violence orders
Omit the section.
[10] Section 562BA Orders made with consent of parties
Omit "section 562B" where firstly occurring from section 562BA (1).
Insert instead "section 562AE or 562AI".
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[11] Section 562BA (1)
Omit "section 562B" where secondly occurring.
Insert instead "section 562AE, 562AI".
[12] Section 562BB Interim court orders
Insert after section 562BB (1):
(1A) An interim order may be either an interim apprehended
domestic violence order or an interim apprehended personal
violence order.
[13] Section 562BB (5) and (6)
Omit "section 562B" wherever occurring.
Insert instead "section 562AE or 562AI as appropriate".
[14] Section 562BBA Interim orders made by clerk of court with consent
Omit "section 562B" wherever occurring from section 562BBA (4).
Insert instead "section 562AE or 562AI as appropriate".
[15] Section 562BE Order must be made on guilty plea or guilt finding for
certain offences
Omit section 562BE (1). Insert instead:
(1) If a person pleads guilty to, or is found guilty of, an offence
against section 562AB or a domestic violence offence, the
court must make an order under this Part for the protection of
the person against whom the offence was committed, as if a
complaint for an apprehended violence order had been made
under this Part.
(1A) If a person pleads guilty to, or is found guilty of, an offence
against section 562AB or a domestic violence offence, the
court may vary an order under this Part for the purpose of
providing greater protection for the person against whom the
offence was committed, as if an application to vary an
apprehended violence order had been made under this Part.
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[16] Section 562BE (3) and (4)
Insert after section 562BE (2):
(3) A reference in this section to a court extends to the District
Court when exercising jurisdiction apart from under section
562G.
(4) Without limiting the interpretation of the expression, a
reference in this section to a finding of guilt includes a
reference to the making of an order under section 556A.
[17] Section 562BF Order must be made on charge for certain offences
Insert after section 562BF (3):
(4) A reference in this section to a court extends to the District
Court when exercising jurisdiction apart from under section
562G.
[18] Section 562D Prohibitions and restrictions imposed by orders
Omit "section 562B" from section 562D (1).
Insert instead "sections 562AE and 562AI".
[19] Section 562E Duration of court orders
Omit section 562E (4). Insert instead:
(4) An interim order made by a court remains in force until:
(a) it is revoked, or
(b) it ceases to have effect under section 562BB (5), or
(c) the relevant complaint is withdrawn or dismissed,
whichever first occurs.
[20] Section 562F Variation or revocation of court orders
Insert after section 562F (2):
(2A) The 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.
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[21] Section 562F (8)
Insert after section 562F (7):
(8) Despite subsection (6), the court may make an order extending
the period during which the order is to remain in force without
notice of the relevant application having been served on the
defendant, if:
(a) the applicant lodged the application no later than 21
days before the day on which the order is due to expire,
and
(b) the application is listed for mention before the court no
later than 14 days after the day the application was
lodged, and
(c) notice of the application has not been served on the
defendant by the time the matter is heard by the court,
but, unless sooner revoked, such an order ceases to have effect
21 days after it is made or on an earlier date specified in the
order. However, further orders may be made from time to time
under this subsection before the order ceases to have effect.
[22] Section 562G Courts authorised to make orders etc
Omit section 562G (4).
[23] Section 562GA Making of orders by District Court
Omit the section.
[24] Section 562GB Jurisdiction of District Court under this Part
Omit the section.
[25] Section 562H Telephone interim orders
Insert after section 562H (1):
(1A) Such an interim apprehended violence order may be either an
interim apprehended domestic violence order or an interim
apprehended personal violence order.
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[26] Section 562H (2) (c)
Omit the paragraph. Insert instead:
(c) the police officer attending the incident has good reason
to believe an order is necessary to ensure the safety of
the person who would be protected by the order or to
prevent substantial damage to any property of that
person.
[27] Section 562H (4) and (5)
Omit the subsections. Insert instead:
(4) Standard terms of order
A telephone interim order is an order that states that the
defendant must not assault, molest, harass, threaten or
otherwise interfere with the protected person. Nothing in this
subsection affects section 562BC.
(5) Further terms of orders
If the police officer making the application for the telephone
interim order has good reason to believe that the safety of the
protected person is in imminent danger from the defendant, the
police officer may, in the application, request the authorised
justice to impose all or any of the following prohibitions or
restrictions on the behaviour of the defendant:
(a) prohibiting or restricting approaches by the defendant to
the protected person,
(b) prohibiting or restricting access by the defendant to any
or all of the following:
(i) any premises occupied by the protected person
from time to time or any specified premises
occupied by the protected person,
(ii) any place where the protected person works
from time to time or any specified place of work
of the protected person,
(iii) any specified premises or place frequented by
the protected person,
whether or not the defendant has a legal or equitable
interest in the premises or place,
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(c) prohibiting or restricting the defendant from
approaching the protected person, or any such premises
or place, within 12 hours of consuming intoxicating
liquor or illicit drugs,
(d) prohibiting the defendant from destroying or
deliberately damaging or interfering with the protected
person's property.
The authorised justice may impose any or all of those
prohibitions or restrictions by the order if satisfied there are
reasonable grounds for doing so.
[28] Section 562H (15A)
Insert after section 562H (15):
(15A) Purported renewal or continuance
However, if a court purports to renew or continue a telephone
interim order, the order is taken to be an interim apprehended
violence order made by the court at that time. An authorised
justice may at any time make an endorsement on the order to
that effect and make any appropriate amendments to the order,
but that action is not a necessary prerequisite to its status as an
interim apprehended violence order. Further service of the
order is not required.
[29] Section 562H (16)
Omit "Department of Courts Administration" from paragraph (c) of the
definition of authorised justice.
Insert instead "Attorney General's Department".
[30] Section 562H (16)
Omit the definition of personal injury.
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[31] Section 562I Offence of contravening order
Insert after section 562I (5):
(6) If:
(a) a police officer believes on reasonable grounds that:
(i) a person has committed an offence against this
section, or
(ii) a person, in respect of whom an alleged breach
of this section has been reported to that or
another police officer, has not committed an
offence against this section, and
(b) that or another police officer:
(i) decides not to initiate criminal proceedings
against the person, in respect of the alleged
offence, whether or not the person has been
arrested, or
(ii) decides not to proceed with criminal
proceedings,
the police officer must make a written record of the reasons for
the decision.
[32] Section 562J Service of copy of order
Omit ", or is present but the clerk is unable to serve a copy of the record
personally on the defendant," from section 562J (2A).
[33] Section 562J (2AA)
Insert after section 562J (2A):
(2AA) If the defendant is present at the time the order or variation is
made but the clerk is unable to serve a copy of the record
personally on the defendant, the clerk is to arrange for a copy
of the order to be sent by post to the defendant or to such other
person as the clerk thinks fit.
[34] Section 562J (3)
Omit "to the protected person".
Insert instead "(unless it is impracticable or unnecessary to do so) to be
given to or sent by post to each protected person".
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[35] Section 562K Summons for appearance or arrest of defendant
Omit the section.
[36] Section 562M Appeal to District Court by defendant against order made
by Local Court or Children's Court
Omit the section.
[37] Section 562N
Omit the section. Insert instead:
562N Costs
(1) Subject to this section:
(a) a court may, in proceedings under this Part, award costs
to the complainant or the defendant, and
(b) such costs are to be determined in accordance with
section 81 of the Justices Act 1902.
(2) A court is not to award costs against a complainant who is the
person for whose benefit an apprehended domestic violence
order is sought unless satisfied that the complaint was frivolous
or vexatious. This subsection has effect despite any other Act
or law.
(3) A court is not to award costs against a police officer who
makes a complaint unless satisfied that the police officer made
the complaint knowing it contained matter that was false or
misleading in a material particular. This subsection has effect
despite any other Act or law.
(4) The following provisions have effect in relation to the District
Court:
(a) Subsection (1) applies to the District Court only when
it is exercising original jurisdiction under section 562W.
(b) Section 81 of the Justices Act 1902, in its application to
the District Court when exercising that jurisdiction,
applies to the District Court in the same way as it
applies to a Justice or Justices (and with any prescribed
modifications).
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(c) This section does not affect the operation of any
provisions of the Justices Act 1902 or any other Act or
law relating to the payment of costs in proceedings in an
appeal to the District Court.
[38] Sections 562NB and 562NC
Insert after section 562NA:
562NB Publication of names and identifying information about children
under 16 involved in AVO proceedings
(1) The name of a child:
(a) for whose benefit or against whom an order is sought in
any relevant proceedings, or
(b) who appears, or is reasonably likely to appear, as a
witness before a court in any relevant proceedings, or
(c) who is, or is reasonably likely to be, mentioned or
otherwise involved in any relevant proceedings,
must not be published or broadcast before the proceedings are
commenced or after the proceedings have been commenced
and before they are disposed of.
(2) A person who publishes or broadcasts the name of a child in
contravention of subsection (1) is guilty of an offence.
Maximum penalty: 200 penalty units or imprisonment for a
period not exceeding 2 years or both (in the case of an
individual) or 2,000 penalty units (in the case of a corporation).
(3) Subsection (1) does not prohibit:
(a) the publication or broadcasting of an official report of
the proceedings of a court that includes the name of any
child the publication or broadcasting of which would
otherwise be prohibited by subsection (1), or
(b) the publication or broadcasting of the name of a child
with the consent of the court.
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(4) For the purposes of this section, a reference to the name of a
child includes a reference to any information, picture or other
material:
(a) that identifies the child, or
(b) that is likely to lead to the identification of the child.
(5) The offence created by this section is an offence of strict
liability.
(6) In this section:
child means a person who is under the age of 16 years.
court includes the Clerk of a Local Court or the Registrar of
the Children's Court.
relevant proceedings means proceedings in or before a court
under this Part for or relating to an apprehended violence order.
562NC Publication of names and identifying information about persons
involved in ADVO proceedings
(1) A court may direct that the name of a person (other than a child
to whom section 562NB applies):
(a) for whose benefit or against whom an order is sought in
any relevant proceedings, or
(b) who appears, or is reasonably likely to appear, as a
witness before a court in any relevant proceedings, or
(c) who is, or is reasonably likely to be, mentioned or
otherwise involved in any relevant proceedings,
must not be published or broadcast before the proceedings are
commenced or after the proceedings have been commenced
and before they are disposed of.
(2) A person who publishes or broadcasts the name of a person in
contravention of a direction under subsection (1) is guilty of an
offence.
Maximum penalty: 200 penalty units or imprisonment for a
period not exceeding 2 years or both (in the case of an
individual) or 2,000 penalty units (in the case of a corporation).
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(3) Subsection (1) does not prohibit:
(a) the publication or broadcasting of an official report of
the proceedings of a court that includes the name of any
person the publication or broadcasting of which would
otherwise be prohibited by subsection (1), or
(b) the publication or broadcasting of the name of a person
with the consent of the person or of the court.
(4) For the purposes of this section, a reference to the name of a
person includes a reference to any information, picture or other
material:
(a) that identifies the person, or
(b) that is likely to lead to the identification of the person.
(5) The offence created by this section is an offence of strict
liability.
(6) A court may vary or revoke a direction given by a court under
this section. However, only the District Court may vary or
revoke a direction given by the District Court.
(7) Nothing in this section affects section 562NB.
(8) In this section:
court includes the Clerk of a Local Court or the Registrar of
the Children's Court.
relevant proceedings means proceedings in or before a court
under this Part for or relating to an apprehended domestic
violence order.
[39] Section 562ND
Insert as section 562ND:
562ND Right to presence of supportive person
(1) In this section:
party to a proceeding in relation to a complaint for or
application relating to an order means the person for whose
protection the order is sought or the defendant, but does not
include a child to whom section 27 of the Evidence (Children)
Act 1997 applies in relation to the proceeding.
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(2) A party to a proceeding in relation to a complaint for or
application relating to an order who gives evidence in the
proceeding is entitled to choose a person whom the party
would like to have present near him or her when giving
evidence.
(3) Without limiting a party's right to choose such a person, that
person:
(a) may be a parent, guardian, relative, friend or support
person of the party, and
(b) may be with the party as an interpreter, for the purpose
of assisting the party with any difficulty in giving
evidence associated with a disability, or for the purpose
of providing the party with other support.
(4) To the extent that the court considers it reasonable to do so, the
court must make whatever direction is appropriate to give effect
to a party's decision to have such a person present near the
party, and within the party's sight, when the party is giving
evidence.
(5) The court may permit more than one support person to be
present with the party if the court thinks that it is in the interests
of justice to do so.
[40] Part 15A, Division 3, heading
Omit "interstate restraint orders". Insert instead "external protection orders".
[41] Section 562RA
Insert before section 562S:
562RA Definitions
In this Division:
appropriate court, in relation to an external protection order,
means:
(a) a Local Court if the person against whom the order has
been made is 18 or more years of age, or
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(b) the Children's Court if the person against whom the
order has been made is less than 18 years of age,
on the day on which an application is made under this Division
for the registration of the order.
external protection order means an order made by a court of
another State or Territory or New Zealand that has been made
to prevent a person from acting in a manner specified in section
562AE or 562AI, and includes an order made by such a court
that is of a kind prescribed by the regulations.
registered external protection order means an external
protection order registered under this Division.
[42] Sections 562S-562V
Omit "interstate restraint" wherever occurring.
Insert instead "external protection".
[43] Section 562U Effect of registration of external protection order
Omit "Division 2" wherever occurring from section 562U (1).
Insert instead "this Part".
[44] Section 562U (2)
Omit "State or Territory". Insert instead "State, Territory or country".
[45] Part 15A, Divisions 4 and 5
Insert after section 562V:
Division 4 Jurisdiction of and appeals to District Court
562W Jurisdiction of District Court to issue AVO following dismissal
of complaint by Local Court or Children's Court
(1) The District Court has original jurisdiction to issue an
apprehended violence order, where a complaint by or on behalf
of the person for whose protection an order has been sought
has been dismissed by a Local Court or the Children's Court.
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(2) An application (in this Part referred to as a complaint) by or on
behalf of a person for whose protection an order is sought from
the District Court must be made within 28 days after the date
a Local Court or the Children's Court dismissed the earlier
complaint.
(3) The District Court may, without further hearing, admit in
evidence any evidence that was admitted in the proceedings
before the Local Court or Children's Court.
(4) Further evidence may be given, but only with the leave of the
District Court.
(5) The District Court has jurisdiction to vary or revoke an order
made by it.
(6) The rules of the District Court may make provision for or with
respect to the procedure to be followed in respect of
proceedings in the District Court for an order (including the
variation or revocation of an order).
562WA Appeal to District Court about making, variation or revocation of
apprehended violence order
(1) A defendant may appeal to the District Court under Part 5A of
the Justices Act 1902 against an apprehended violence order
made by a Local Court or the Children's Court.
(2) A party to an apprehended violence order may appeal to the
District Court under Part 5A of the Justices Act 1902 against
any order of a Local Court or the Children's Court to vary or
revoke the apprehended violence order or to refuse to vary or
revoke it.
(3) Part 5A of the Justices Act 1902 applies with any necessary
adaptations to such an appeal.
(4) An order made by the Clerk of a Local Court or the Registrar
of the Children's Court under this Part is taken, for the
purposes of this section and Part 5A of the Justices Act 1902,
to have been made by the court concerned.
(5) In this section:
party to an apprehended violence order means:
(a) the protected person (whether or not the complainant or
applicant), if of or above the age of 16 years, or
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(b) if the complainant or applicant for the order was a
police officer--that or any other police officer, or
(c) the defendant or respondent.
562WB Presumption against stay of order
(1) The lodging of a notice of appeal under section 562WA does
not have the effect of staying the operation of the order
concerned.
(2) The original court may, on application by the defendant, stay
the operation of the order, if satisfied that it is safe to do so,
having regard to the need to ensure the safety of the protected
person or any other person.
(3) A stay on the operation of the order continues until the appeal
is finally determined, subject to any order or direction of the
District Court.
(4) This section has effect despite section 562WA (3) of this Act
and section 127 of the Justices Act 1902.
(5) A stay on the operation of the order does not have effect if the
appellant is in custody when the appeal is made, unless and
until the appellant enters into a bail undertaking in accordance
with the Bail Act 1978, or bail is dispensed with. In the
application of the Bail Act 1978 to the appellant, the appellant
is taken to be an accused person who, because of the
prohibitions and restrictions imposed by the order, is in
custody.
(6) In this section:
original court, in relation to an order, means:
(a) a Local Court, if the order was made by a Local Court
or the Clerk of a Local Court, or
(b) the Children's Court, if the order was made by the
Children's Court or the Registrar of the Children's
Court.
562WC Jurisdiction of District Court under this Part
The jurisdiction conferred on the District Court by this Part is
conferred on the Court in its criminal jurisdiction.
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Division 5 Miscellaneous
562X Arrangements regarding classification of orders
(1) If a court is at any time unable to determine under which of
Divisions 1A and 1B an apprehended violence order should be
made, it may make the order under whichever Division it
thinks fit.
(2) If a court is at any time unable to determine under which of
Divisions 1A and 1B an apprehended violence order was or
should have been made, it may treat the order as having been
made under whichever Division it thinks fit.
(3) If an apprehended violence order is made or treated as having
been made under either Division 1A or Division 1B but should
have been made under the other Division, the order is not
invalid on that ground and is taken to have been made under
the other Division.
562Y Parts 4A and 5A of Justices Act 1902 not affected
Except as expressly provided, nothing in this Part affects the
operation that Parts 4A and 5A of the Justices Act 1902 would
have if Division 4 of this Part had not been enacted.
562Z Review of Part
(1) The Minister is to review this Part to determine whether the
policy objectives of the Part remain valid and whether the
terms of the Part remain appropriate for securing those
objectives.
(2) The review is to be undertaken as soon as possible after the
period of 2 years from the commencement of this section.
(3) A report on the outcome of the review is to be tabled in each
House of Parliament within 12 months after the end of the
period referred to in subsection (2).
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[46] Eleventh Schedule Savings and transitional provisions
Insert at the end of the Schedule (with the insertion of appropriate Part and
clause numbers):
Part Crimes Amendment (Apprehended Violence)
Act 1999
Definitions
(1) In this Part:
amending Act means the Crimes Amendment (Apprehended
Violence) Act 1999.
(2) Words and expressions used in this Part have the same
meanings as in Part 15A.
Existing orders
(1) An apprehended violence order in force immediately before the
omission of section 562B by the amending Act is taken to be
an apprehended violence order issued under Part 15A as
amended by the amending Act.
(2) An apprehended violence order in force immediately before the
omission of section 562B by the amending Act is taken to be:
(a) an apprehended domestic violence order, if the
protected person (or at least one of the protected
persons) for whose protection the order was made has
a domestic relationship with the person against whom it
was issued, or
(b) an apprehended personal violence order, if the
protected person (or each of the protected persons) for
whose protection the order was made does not have a
domestic relationship with the person against whom it
was issued.
(3) An order (other than an order referred to in subclause (1) or
(2)) in force under Part 15A immediately before the
commencement of an amendment made by the amending Act
is taken to have been made under that Part as amended by the
amending Act.
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(4) A registered interstate restraint order within the meaning of
Part 15A immediately before its amendment by the amending
Act is taken to be a registered external protection order within
the meaning of section 562RA as inserted by the amending
Act.
Existing complaints and applications
(1) A complaint for an apprehended violence order pending
immediately before the omission of section 562B by the
amending Act is taken to be:
(a) a complaint for an apprehended domestic violence
order, if the protected person (or at least one of the
protected persons) for whose protection the order is
sought has a domestic relationship with the person
against whom it is sought, or
(b) a complaint for an apprehended personal violence order,
if the protected person (or each of the protected
persons) for whose protection the order is sought does
not have a domestic relationship with the person against
whom it is sought.
(2) An application (other than a complaint referred to in subclause
(1)) pending under a provision of Part 15A immediately before
the commencement of an amendment made by the amending
Act is taken to have been made under that Part as amended by
the amending Act.
References to interstate restraint orders
(1) A reference (however expressed) in any other Act, in any
instrument under any Act or in any other document of any kind
to an interstate restraint order within the meaning of Part 15A
is taken to be a reference to an external protection order within
the meaning of section 562RA as inserted by the amending
Act.
(2) A reference (however expressed) in any other Act, in any
instrument under any Act or in any other document of any kind
to a registered interstate restraint order within the meaning of
Part 15A is taken to be a reference to a registered external
protection order within the meaning of section 562RA as
inserted by the amending Act.
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Regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the
amending Act.
(2) Any such provision may, if the regulations so provide, take
effect from the date of assent to the amending Act or a later
date.
(3) To the extent to which any such provision takes effect from a
date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other
than the State or an authority of the State), the rights of
that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the date of its publication.
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