[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 Explanatory note This explanatory note relates to this Bill as introduced into Parliament. Overview of Bill The object of this Bill is to give effect to the New South Wales component of a national recognition scheme for domestic violence orders. Outline of provisions Clause 1 sets out the name (also called the short title) of the proposed Act. Clause 2 provides for the commencement of the proposed Act by proclamation. Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 Schedule 1 [9] inserts proposed Part 13B into the Crimes (Domestic and Personal Violence) Act 2007 (the principal Act) to give effect to the New South Wales component of a national recognition scheme for domestic violence orders. The proposed Part incorporates model provisions that were approved by the Council of Australian Governments on 11 December 2015. Division 1 of proposed Part 13B deals with preliminary matters and contains proposed sections 98R-98X. Proposed section 98R sets out the object of the proposed Part which is to establish, in conjunction with corresponding laws, a national recognition scheme for domestic violence orders (DVOs). Proposed section 98S sets out definitions for the purposes of the proposed Part. b2015-149.d09 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Explanatory note Proposed sections 98T-98V define local DVO, interstate DVO and registered foreign order. A local DVO is an apprehended domestic violence order or an interim apprehended domestic violence order made under the principal Act. An interstate DVO is a domestic violence order (or an order that addresses a domestic violence concern) made under various pieces of legislation of other States and Territories. A registered foreign order means a foreign order (which at this stage only includes New Zealand DVOs) that is registered under Part 13 and was made to prevent a person acting in a manner specified in section 16 of the principal Act, or that was made under provisions similar to Part 13 in legislation of other States and Territories. South Australia and Western Australia do not have a distinct category of domestic violence orders. Therefore to distinguish domestic violence orders from other orders for the protection of persons in those States, the definition of interstate DVO (when referring to orders from those States) is limited to orders that address domestic violence concerns. Proposed section 98W sets out when an order will be taken to address a domestic violence concern. Proposed section 98X provides that a registered foreign order is taken to be made in the jurisdiction in which it is registered and is taken to have been made when it is so registered. If the registration of the order is varied or revoked, then the order is varied or revoked. Division 2 of proposed Part 13B deals with the national recognition of DVOs and contains proposed sections 98Y-98ZK. Proposed section 98Y sets out that recognised DVO means a local DVO, an interstate DVO made in a participating jurisdiction (being New South Wales or another jurisdiction that has enacted provisions that correspond with proposed Part 13B (a corresponding law)) or a foreign order that is a registered foreign order in any participating jurisdiction. Schedule 1 [7] removes an existing power for an interstate DVO to be registered in New South Wales as this is now no longer necessary because of proposed Part 13B. Proposed sections 98Z and 98ZA set out the circumstances in which a variation to, or revocation of, a recognised DVO is recognised in New South Wales. In the case of a local DVO, the variation or revocation is recognised if it is done in accordance with the principal Act or it is done by a court in a participating jurisdiction under a corresponding law. In the case of an interstate DVO or foreign order the variation or revocation is recognised if it is done in the issuing jurisdiction under the law of that jurisdiction or it is done in a participating jurisdiction under a corresponding law. A variation to a DVO that is recognised in New South Wales is a recognised variation. Proposed section 98ZB provides that a recognised DVO that is newer than an earlier comparable recognised DVO supersedes the earlier recognised DVO. A DVO is comparable if it is made against the same defendant and it is made for the protection of one or more of the same protected persons. Proposed section 98ZC provides that proposed Part 13B does not prevent the making of a local DVO even if a recognised DVO is in force that applies to the same defendant. However, a person cannot make a provisional order against a defendant under Part 7 of the principal Act if the person is aware that a recognised DVO is in force against the defendant and that recognised DVO applies to the same protected person and was made by a court. Schedule 1 [1] and [2] make consequential amendments. Proposed section 98ZD provides that both a recognised DVO and a recognised variation to a recognised DVO, is enforceable in New South Wales. Schedule 1 [8] makes a consequential amendment. Proposed section 98ZE sets out the circumstances in which a defendant is taken to be properly notified about the making of a local DVO or an interstate DVO, or about the variation of a recognised DVO. Proposed section 98ZF provides that a non-local DVO (being an interstate DVO or a foreign DVO) that is a recognised DVO and (under proposed section 98ZD) is enforceable in New South Wales may be enforced as if it were a local DVO and as if the defendant had been properly notified Page 2 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Explanatory note in New South Wales about the making of the DVO. It also provides for the circumstances in which a variation may be enforced in New South Wales. Proposed section 98ZG provides that a recognised DVO that is a non-local DVO has the same effect in New South Wales as a local DVO. Proposed section 98ZH provides that any law of New South Wales that limits a person's ability to hold an authorisation (such as a licence or permit) because the person is subject to a local DVO extends in the same way to a person who is subject to a recognised non-local DVO. Proposed sections 98ZI and 98ZJ provide that if a person is disqualified from holding an authorisation to possess a firearm or a prohibited weapon in another jurisdiction because of a recognised non-local DVO, the person is also disqualified from holding a licence or permit to possess the firearm under the Firearms Act 1996 or from holding a permit to possess the weapon under the Weapons Prohibition Act 1998. Proposed section 98ZK provides that non-local DVO, to the extent that it requires the payment of money, cannot be enforced in New South Wales and that the recognition of a DVO in New South Wales does not permit a New South Wales court to award costs in respect of proceedings occurring in another jurisdiction. Division 3 of proposed Part 13B deals with the variation and revocation of recognised non-local DVOs and contains proposed sections 98ZL-98ZO. Proposed section 98ZL sets out a definition of court for the purposes of the proposed Division, which is defined to mean a New South Wales court that can make an apprehended domestic violence order or an interim apprehended domestic violence order under the principal Act. Proposed section 98ZM sets out when a court can vary or revoke a recognised non-local DVO. Proposed section 98ZN sets out the circumstances in which an application can be made to a court for the variation or revocation of a recognised non-local DVO. Proposed section 98ZO provides a court with a discretion to hear or decline to hear an application for the variation or revocation of a recognised non-local DVO. However, a court must refuse to hear the application if made by the defendant during any period in which the defendant is not entitled to apply for the variation or revocation of the DVO in the jurisdiction in which the DVO was issued. Division 4 of proposed Part 13B deals with the exchange of information and contains proposed sections 98ZP-98ZS. Proposed section 98ZP permits a New South Wales issuing authority (being a court or other person with power to make, vary or revoke a DVO) to obtain and use information from an issuing authority of another jurisdiction, or from a New South Wales or interstate law enforcement agency. Proposed section 98ZQ requires a New South Wales issuing authority that makes, varies or revokes a DVO to provide, on request, information about the DVO to a court in a participating jurisdiction for the purposes of a corresponding law or to a New South Wales or interstate law enforcement agency for the purposes of its law enforcement functions. Proposed section 98ZR permits a New South Wales law enforcement agency (being the NSW Police Force) to obtain information about a DVO from an issuing authority (in New South Wales or another jurisdiction) or interstate law enforcement agency and to use the information for the purposes of its law enforcement functions. Proposed section 98ZS requires a New South Wales law enforcement agency to provide, on request, information about a DVO to an interstate law enforcement agency for the purpose of exercising its law enforcement functions. Division 5 of proposed Part 13B deals with miscellaneous matters and contains proposed section 98ZT. Page 3 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Explanatory note Proposed section 98ZT permits certificates to be issued stating that the making of, or variation to, a DVO has been properly notified in New South Wales or another jurisdiction. The certificate is admissible in evidence in proceedings. Division 6 of proposed Part 13B sets out transitional provisions and contains proposed sections 98ZU-98ZZE. Proposed section 98ZU inserts a definition of commencement date for the purposes of the proposed Division. The commencement date is the day on which proposed Part 13B commences. Proposed section 98ZV provides that proposed Part 13B does not affect the enforceability in New South Wales of a local DVO made before the commencement date or of any interstate DVO or foreign order registered under Part 13 of the principal Act in New South Wales before the commencement date except as otherwise provided under the proposed Part. Proposed sections 98ZW and 98ZX provide that Division 2 (National recognition of DVOs) of proposed Part 13B will apply to all local DVOs and foreign orders made in New South Wales on or after the commencement date and to all DVOs made in other participating jurisdictions that are recognised DVOs under that jurisdiction's corresponding law. Proposed section 98ZY provides that recognised DVO includes any DVO that has been declared by the registrar of a court in New South Wales or in a participating jurisdiction to be a recognised DVO. Proposed section 98ZZ states that the DVO is still recognised even if the relevant declaration was made before the commencement date. Proposed section 98ZZA sets out a definition of registrar for the purposes of proposed sections 98ZZB-98ZZD, being a registrar of a court in New South Wales that can make local DVOs. Proposed section 98ZZB permits a registrar to declare that a DVO made in any jurisdiction is a recognised DVO in New South Wales. Proposed section 98ZZC provides that an application for a declaration may be made by any person who would be able to make an application for variation of the DVO if the DVO were a recognised DVO. Proposed section 98ZZD permits a court (that has the power to make a DVO in New South Wales) to exercise the functions of a registrar under proposed sections 98ZZB-98ZZD. Proposed section 98ZZE provides for the principal Act to continue to apply to interstate DVOs that are currently registered under Part 13 as if proposed Part 13B had not commenced. An interstate DVO ceases to be registered under that Part (and proposed Part 13B applies to the order) if the order becomes a recognised DVO in New South Wales. Schedule 1 [3]-[6] extend protections in Part 9 of the principal Act to proceedings under proposed Part 13B. Those protections relate to the giving of evidence by children, preventing the disclosure of the residential address of protected persons and preventing the publication of names. Those provisions are extended to proceedings for the variation or revocation of a recognised non-local DVO and proceedings for a declaration that a DVO is a recognised DVO. Page 4 First print New South Wales Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 Contents Page 1 Name of Act 2 2 Commencement 2 Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 3 b2015-149.d09 New South Wales Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 No , 2016 A Bill for An Act to amend the Crimes (Domestic and Personal Violence) Act 2007 to give effect to the New South Wales component of a national recognition scheme for domestic violence orders. Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Crimes (Domestic and Personal Violence) Amendment (National 3 Domestic Violence Orders Recognition) Act 2016. 4 2 Commencement 5 This Act commences on a day or days to be appointed by proclamation. 6 Page 2 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 Schedule 1 Amendment of Crimes (Domestic and Personal 1 Violence) Act 2007 No 80 2 [1] Section 28 Making of provisional order by authorised officer 3 Insert after section 28 (1): 4 Note. Section 98ZC (2) prevents an authorised officer from making an interim 5 apprehended domestic violence order if the officer is aware that a recognised DVO 6 made by a court applies to the same defendant and protected person and is 7 enforceable against the defendant under Part 13B. 8 [2] Section 28A Making of provisional order by senior police officer 9 Insert after section 28A (1): 10 Note. Section 98ZC (2) prevents a senior police officer from making an interim 11 apprehended domestic violence order if the officer is aware that a recognised DVO 12 made by a court applies to the same defendant and protected person and is 13 enforceable against the defendant under Part 13B. 14 [3] Section 41 Measures to protect children in proceedings 15 Insert after section 41 (1) (d): 16 (e) any part of proceedings under Part 13B for the variation or revocation 17 of a recognised non-local DVO or for a declaration that a DVO is a 18 recognised DVO in which a child appears as a witness. 19 [4] Section 43 Non-inclusion of protected person's residential address in applications 20 or orders 21 Insert "or an application under Part 13B for the variation or revocation of a recognised 22 non-local DVO or for a declaration that a DVO is a recognised DVO" before "unless" in 23 section 43 (1). 24 [5] Section 43 (2) 25 Insert "or in a declaration under Part 13B that a DVO is a recognised DVO" before 26 "unless". 27 [6] Section 45 Publication of names and identifying information about children and 28 other persons involved in proceedings 29 Omit section 45 (8). Insert instead: 30 (8) In this section: 31 apprehended violence order proceedings include proceedings under Part 13B 32 for the variation or revocation of a recognised non-local DVO or for a 33 declaration that a DVO is a recognised DVO. 34 court includes a Registrar. 35 [7] Section 94 Definitions 36 Omit the definition of external protection order. Insert instead: 37 external protection order means: 38 (a) an order made by a court of New Zealand that has been made to prevent 39 a person from acting in a manner specified in section 16, or 40 (b) an order made by a court of another State or Territory or New Zealand 41 that has been made to prevent a person from acting in a manner 42 specified in section 19, or 43 Page 3 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 (c) an order made by a court of another State or Territory or New Zealand 1 that is of a kind prescribed by the regulations. 2 [8] Section 97 Effect of registration of external protection order 3 Insert after section 97 (2): 4 (2A) Subsection (2) does not apply to a variation or revocation of an external 5 protection order if the order is a recognised DVO under Part 13B and the 6 variation or revocation is recognised in New South Wales under that Part. 7 [9] Part 13B 8 Insert after Part 13A: 9 Part 13B National recognition of domestic violence orders 10 Division 1 Preliminary 11 98R Object of Part 12 This Part establishes, in conjunction with the corresponding laws, a national 13 recognition scheme for DVOs (or domestic violence orders). 14 98S Definitions 15 In this Part: 16 corresponding law means a law of another jurisdiction that contains 17 provisions that substantially correspond with this Part or a law of another 18 jurisdiction that is declared by the regulations to be a corresponding law for 19 the purposes of this Part. 20 defendant means the person against whom a DVO is made. 21 domestic violence concern--see section 98W. 22 DVO (or domestic violence order) means a local DVO, an interstate DVO or 23 a foreign order. 24 final DVO means a DVO that is not an interim DVO. 25 foreign order means a New Zealand DVO. 26 general violence order means: 27 (a) an intervention order under the Intervention Orders (Prevention of 28 Abuse) Act 2009 of South Australia, or 29 (b) a violence restraining order under the Restraining Orders Act 1997 of 30 Western Australia, other than: 31 (i) a violence restraining order made under section 11B of that Act, 32 or 33 (ii) a police order under that Act. 34 interim DVO means a DVO that is of an interim or provisional nature and, to 35 avoid doubt, includes the following: 36 (a) any DVO made by a police officer, 37 (b) an emergency order under the Domestic Violence and Protection 38 Orders Act 2008 of the Australian Capital Territory, 39 (c) a temporary protection order under the Domestic and Family Violence 40 Protection Act 2012 of Queensland, 41 (d) any DVO declared by the regulations to be an interim DVO. 42 Page 4 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 interstate DVO--see section 98U. 1 interstate law enforcement agency means: 2 (a) the police force of another jurisdiction, or 3 (b) any other agency of another jurisdiction responsible for the enforcement 4 of DVOs in that jurisdiction. 5 issuing authority means a court or person with power to make, vary or revoke 6 a DVO under the law of a participating jurisdiction. 7 issuing jurisdiction for a DVO means the jurisdiction in which the DVO is 8 made. 9 jurisdiction means a State or Territory. 10 local DVO--see section 98T. 11 local law enforcement agency means the NSW Police Force. 12 make includes issue. 13 New Zealand DVO means an order made under the Domestic Violence Act 14 1995 of New Zealand or under an Act repealed by that Act. 15 non-local DVO means an interstate DVO or a foreign order. 16 participating jurisdiction means the following jurisdictions: 17 (a) New South Wales, 18 (b) a jurisdiction in which a corresponding law is enacted. 19 properly notified--see section 98ZE. 20 protected person means a person for whose protection or benefit a DVO is 21 made. 22 recognised DVO--see sections 98Y and 98ZY. 23 recognised variation--see section 98Z. 24 registered foreign order--see section 98V. 25 revoke includes cancel. 26 vary a DVO includes the following: 27 (a) amend or modify the DVO, 28 (b) add further conditions, prohibitions or restrictions to the DVO or vary 29 or delete conditions, prohibitions or restrictions, 30 (c) extend or reduce the period in which the DVO remains in force. 31 98T Local DVO 32 (1) A local DVO means an apprehended domestic violence order or an interim 33 apprehended domestic violence order made under this Act. 34 (2) A registered foreign order is not a local DVO. 35 98U Interstate DVO 36 (1) Each of the following orders is an interstate DVO: 37 (a) a domestic violence order under the Domestic Violence and Protection 38 Orders Act 2008 of the Australian Capital Territory, 39 (b) a domestic violence order under the Domestic and Family Violence Act 40 of the Northern Territory, 41 (c) a domestic violence order or police protection notice under the 42 Domestic and Family Violence Protection Act 2012 of Queensland, 43 Page 5 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 (d) an intervention order under the Intervention Orders (Prevention of 1 Abuse) Act 2009 of South Australia that addresses a domestic violence 2 concern, 3 (e) a family violence order (FVO), interim FVO or police family violence 4 order (PFVO) under the Family Violence Act 2004 of Tasmania, 5 (f) a family violence intervention order or a family violence safety notice 6 under the Family Violence Protection Act 2008 of Victoria, 7 (g) the following orders under the Restraining Orders Act 1997 of Western 8 Australia: 9 (i) a violence restraining order that addresses a domestic violence 10 concern, 11 (ii) any violence restraining order made under section 11B of that 12 Act, 13 (iii) a police order, 14 (h) any order, notice or other thing declared by the regulations to be an 15 interstate DVO. 16 (2) A registered foreign order is not an interstate DVO. 17 98V Registered foreign order 18 A registered foreign order means a foreign order that is: 19 (a) a registered external protection order under Part 13 of this Act that has 20 been made to prevent a person acting in a manner specified in 21 section 16, or 22 (b) a registered order under Part 12 of the Domestic Violence and 23 Protection Orders Act 2008 of the Australian Capital Territory, or 24 (c) a registered external order under the Domestic and Family Violence Act 25 of the Northern Territory, or 26 (d) a registered interstate order under the Domestic and Family Violence 27 Protection Act 2012 of Queensland, or 28 (e) a foreign intervention order registered under Part 4 of the Intervention 29 Orders (Prevention of Abuse) Act 2009 of South Australia, or 30 (f) an external family violence order registered under section 27 of the 31 Family Violence Act 2004 of Tasmania, or 32 (g) a corresponding New Zealand order registered under Part 10 of the 33 Family Violence Protection Act 2008 of Victoria, or 34 (h) a foreign restraining order registered under Part 7A of the Restraining 35 Orders Act 1997 of Western Australia, or 36 (i) any order declared by the regulations to be a registered foreign order. 37 98W Domestic violence concerns--SA and WA orders 38 (1) An intervention order under the Intervention Orders (Prevention of Abuse) Act 39 2009 of South Australia addresses a domestic violence concern if the order is 40 made because it is reasonable to suspect that the defendant will, without 41 intervention, commit an act of domestic abuse (within the meaning of that 42 Act). 43 (2) A violence restraining order under the Restraining Orders Act 1997 of 44 Western Australia addresses a domestic violence concern if the order is made 45 because the defendant has committed, or because it is feared the defendant will 46 Page 6 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 commit, an act of family and domestic violence (within the meaning of 1 section 6 of that Act). 2 (3) A general violence order is taken, for the purpose of this Part, to be an order 3 that addresses a domestic violence concern if: 4 (a) it is declared to be an order that addresses a domestic violence concern 5 by the issuing authority that makes the order, or 6 (b) a registrar of a court of the jurisdiction in which the order was made 7 makes an order declaring the DVO to be a recognised DVO in that 8 jurisdiction. 9 (4) The regulations may prescribe circumstances in which an order made in a 10 participating jurisdiction is taken, for the purpose of this Part, to be an order 11 that addresses a domestic violence concern. 12 98X Special provisions for foreign orders 13 (1) For the purpose of this Part, a registered foreign order: 14 (a) is taken to be made in the jurisdiction in which it is registered as a 15 registered foreign order, and 16 (b) is taken to be made when it becomes a registered foreign order in that 17 jurisdiction. 18 (2) A registered foreign order is varied or revoked, for the purpose of this Part, if 19 its registration as a registered foreign order is varied or revoked. 20 (3) A power conferred by this Part to vary or revoke a registered foreign order is 21 a power to vary or revoke registration of the order as a registered foreign order. 22 Division 2 National recognition of DVOs 23 Subdivision 1 General principles 24 98Y Recognition of DVOs 25 (1) Each of the following DVOs is a recognised DVO in New South Wales: 26 (a) a local DVO, 27 (b) an interstate DVO made in a participating jurisdiction, 28 (c) a foreign order that is a registered foreign order in any participating 29 jurisdiction. 30 Note. Recognition can also extend to DVOs made in jurisdictions that are not, or are 31 not yet, participating jurisdictions. See Division 6. 32 (2) A DVO becomes a recognised DVO when it is made. 33 Note. A foreign order is taken to be made when it is registered as a registered foreign 34 order. 35 (3) A DVO is a recognised DVO, subject to this Part, for the period for which it 36 remains in force in the jurisdiction in which it is made. 37 98Z Variations to DVO 38 (1) A variation to a recognised DVO that is done in New South Wales or another 39 jurisdiction is a recognised variation in New South Wales in the 40 circumstances provided for by this section. 41 Page 7 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 (2) A variation to a local DVO is a recognised variation in New South Wales if the 1 variation is done: 2 (a) in New South Wales by a court or any other person authorised to do so 3 under this Act, or 4 (b) in another participating jurisdiction by a court under a corresponding 5 law. 6 (3) A variation to an interstate DVO or foreign order is a recognised variation in 7 New South Wales if the variation is done: 8 (a) in the issuing jurisdiction by a court or any other person authorised to 9 do so under the law of the issuing jurisdiction, or 10 (b) in any participating jurisdiction by a court under this Part or a 11 corresponding law. 12 Note. The issuing jurisdiction for a foreign order is the jurisdiction in which the order is 13 registered. 14 (4) A variation is recognised from the time that it is made. 15 98ZA Revocation of recognised DVO 16 (1) A DVO ceases to be a recognised DVO if the DVO is revoked in New South 17 Wales or another jurisdiction and that revocation is recognised in New South 18 Wales. 19 (2) A revocation of a local DVO is recognised in New South Wales if the 20 revocation is done: 21 (a) in New South Wales by a court or any other person authorised to do so 22 under this Act, or 23 (b) in another participating jurisdiction by a court under a corresponding 24 law. 25 (3) A revocation of an interstate DVO or foreign order is recognised in New South 26 Wales if the revocation is done: 27 (a) in the issuing jurisdiction by a court or any other person authorised to 28 do so under the law of the issuing jurisdiction, or 29 (b) in any participating jurisdiction by a court under this Part or a 30 corresponding law. 31 (4) The DVO ceases to be a recognised DVO from the time it is revoked. 32 98ZB Recognised DVO prevails over earlier comparable DVOs 33 (1) A recognised DVO that is enforceable against a defendant in New South 34 Wales (a new DVO) supersedes: 35 (a) any comparable recognised DVO made earlier than the new DVO, and 36 (b) any comparable local DVO made earlier than the new DVO (whether or 37 not the local DVO is a recognised DVO). 38 (2) The earlier comparable DVO is superseded from the time the recognised DVO 39 becomes enforceable against the defendant. 40 (3) A recognised DVO that is superseded ceases to be a recognised DVO. 41 (4) A local DVO that is superseded is revoked. 42 (5) A DVO is not superseded to the extent that it relates to a protected person who 43 is not a protected person under the new DVO. 44 Page 8 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 (6) Accordingly, a DVO continues to be a recognised DVO, and to have effect, to 1 the extent that it relates to a person who is not a protected person under the new 2 DVO. 3 (7) A DVO made by a police officer does not supersede a comparable DVO made 4 by a court (of any jurisdiction). 5 (8) A DVO is comparable with another DVO if: 6 (a) the DVOs are made against the same defendant, and 7 (b) the DVOs are made for the protection of one or more of the same 8 protected persons. 9 98ZC Making of new orders 10 (1) Nothing in this Part prevents a person from applying for, or an issuing 11 authority from making, a local DVO even though there is a recognised DVO 12 in force that applies to the same defendant. 13 (2) However, a person is not to make a provisional order under Part 7 if the person 14 is aware that there is already a recognised DVO that is enforceable against the 15 defendant which: 16 (a) applies to the same defendant and protected person, and 17 (b) was made by a court of any jurisdiction. 18 Subdivision 2 Enforcement of recognised DVOs 19 98ZD Recognised DVOs and variations are enforceable against defendant 20 (1) A recognised DVO, or a recognised variation to a recognised DVO, is 21 enforceable against the defendant in New South Wales. 22 (2) A recognised DVO that is a local DVO becomes enforceable against the 23 defendant in New South Wales when the defendant is properly notified of the 24 making of the DVO under the law of New South Wales. 25 (3) A recognised DVO that is a non-local DVO (other than a foreign order) 26 becomes enforceable against a defendant in New South Wales when the 27 defendant is properly notified of the making of the DVO under the law of the 28 jurisdiction in which the DVO was made. 29 (4) A recognised DVO that is a foreign order becomes enforceable against a 30 defendant in New South Wales from the time it becomes a recognised DVO. 31 (5) A recognised variation to a recognised DVO becomes enforceable against the 32 defendant in New South Wales when the defendant is properly notified of the 33 variation under the law of the jurisdiction in which the variation is done. 34 98ZE Properly notified--meaning 35 (1) The making of a local DVO is properly notified under the law of New South 36 Wales if: 37 (a) the DVO is made by a court and the defendant is present in court when 38 the DVO is made, or 39 (b) the defendant is served in accordance with this Act with a copy of the 40 DVO. 41 (2) The making of an interstate DVO is properly notified under the law of the 42 jurisdiction in which it is made in the circumstances provided for by the 43 corresponding law of that jurisdiction. 44 Page 9 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 (3) A variation to a recognised DVO that is done in New South Wales is properly 1 notified under the law of New South Wales if: 2 (a) the variation is done by a court and the defendant is present in court 3 when the DVO is varied, or 4 (b) the defendant is served in accordance with this Act with a copy of the 5 variation. 6 (4) A variation to a recognised DVO that is done in another jurisdiction is 7 properly notified under the law of that jurisdiction in the circumstances 8 provided for by the corresponding law of that jurisdiction. 9 98ZF Contravention of enforceable recognised DVO 10 (1) A non-local DVO that is a recognised DVO and which is enforceable against 11 a defendant in New South Wales may be enforced in New South Wales: 12 (a) as if it were a local DVO, and 13 (b) as if the defendant had been properly notified of the making of the DVO 14 under the law of New South Wales. 15 (2) A recognised variation to a non-local DVO that is a recognised DVO and 16 which is enforceable in New South Wales may be enforced in New South 17 Wales as if it were a variation to a local DVO. 18 (3) A recognised variation to a recognised DVO made in another jurisdiction that 19 is enforceable against the defendant in New South Wales may be enforced as 20 if the defendant had been properly notified of the variation under the law of 21 New South Wales. 22 (4) This section does not affect any law of New South Wales that requires a 23 geographical nexus to exist between New South Wales and an offence for a 24 person to be guilty of an offence under the law of New South Wales. 25 Subdivision 3 Enforcement of non-local DVOs 26 98ZG Non-local DVO to be treated as local DVO 27 (1) A recognised DVO that is a non-local DVO has the same effect in New South 28 Wales as a local DVO. 29 (2) A prohibition, restriction or condition imposed by a non-local DVO has the 30 same meaning as it would have in the jurisdiction in which the DVO was 31 made, but may be enforced in New South Wales as if it were a prohibition or 32 restriction of a local DVO. 33 Note. Section 14 of this Act creates an offence if a person contravenes a prohibition or 34 restriction in an apprehended violence order. This means that a condition of a non-local 35 DVO that is in the nature of a prohibition or restriction can be enforced in New South 36 Wales. However, a condition of a non-local DVO that is not in the nature of a prohibition 37 or restriction (for example, a condition that requires the defendant to attend an alcohol 38 rehabilitation course) cannot be enforced. 39 98ZH Licences, permits and other authorisations 40 (1) A law of New South Wales (a relevant law) that restricts the grant of an 41 authorisation, or that authorises or requires an authorisation to be suspended 42 or revoked, if a person is or has been subject to a local DVO extends to a 43 person who is or has been subject to any non-local DVO that is a recognised 44 DVO (as if the non-local DVO were a local DVO). 45 Page 10 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 (2) For the purposes of a relevant law: 1 (a) a non-local DVO that is a final DVO is to be treated in the same way as 2 a local DVO that is a final DVO, and 3 (b) a non-local DVO that is an interim DVO is to be treated in the same way 4 as a local DVO that is an interim DVO. 5 (3) In this section: 6 authorisation includes a licence or permit. 7 grant includes issue. 8 98ZI Recognition of disqualification to hold firearms licence 9 (1) If a non-local DVO that is a recognised DVO disqualifies a person from 10 holding a non-local firearms licence, or type of non-local firearms licence, the 11 person is also disqualified from holding a local firearms licence or local 12 firearms licence of the same type (as the case requires). 13 (2) The Commissioner of Police must revoke any local firearms licence held by a 14 person, or refuse to issue a local firearms licence to a person, if the person is 15 so disqualified from holding the firearms licence by a recognised DVO. 16 (3) A recognised DVO disqualifies a person from holding a non-local firearms 17 licence or type of non-local firearms licence if the DVO expressly: 18 (a) disqualifies the person from holding a non-local firearms licence or type 19 of non-local firearms licence, or 20 (b) revokes or requires the person to surrender a non-local firearms licence 21 or type of non-local firearms licence held by the person. 22 (4) In this section: 23 local firearms licence means a licence, permit or other authorisation under the 24 Firearms Act 1996. 25 non-local firearms licence means a licence, permit or other authorisation to 26 possess a firearm (within the meaning of the Firearms Act 1996) issued under 27 the law of another jurisdiction or country. 28 98ZJ Recognition of disqualification to hold weapons permit 29 (1) If a non-local DVO that is a recognised DVO disqualifies a person from 30 holding a non-local weapons permit or type of non-local weapons permit, the 31 person is also disqualified from holding a local weapons permit or local 32 weapons permit of the same type (as the case requires). 33 (2) The Commissioner of Police must revoke any local weapons permit held by a 34 person, or refuse to issue a local weapons permit to a person, if the person is 35 so disqualified from holding the weapons permit by a recognised DVO. 36 (3) A recognised DVO disqualifies a person from holding a non-local weapons 37 permit or type of non-local weapons permit if the DVO expressly: 38 (a) disqualifies the person from holding a non-local weapons permit or type 39 of non-local weapons permit, or 40 (b) revokes or requires the person to surrender a non-local weapons permit 41 or type of non-local weapons permit held by the person. 42 (4) In this section: 43 local weapons permit means a permit under the Weapons Prohibition 44 Act 1998. 45 Page 11 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 non-local weapons permit means a licence, permit or other authorisation to 1 possess a prohibited weapon (within the meaning of the Weapons Prohibition 2 Act 1998) issued under the law of another jurisdiction or country. 3 98ZK Orders for costs 4 (1) A non-local DVO, to the extent that it requires the payment of money, cannot 5 be enforced in New South Wales. 6 (2) The recognition of a DVO made in another jurisdiction does not confer power 7 on a court or tribunal of New South Wales to award costs in respect of any 8 proceedings relating to the DVO that occurred in another jurisdiction. 9 (3) This section does not prevent a court or tribunal awarding costs in respect of 10 any proceedings in New South Wales relating to the variation or revocation of 11 a recognised DVO. 12 Division 3 Variation and revocation of recognised non-local DVOs 13 98ZL Definition 14 In this Division: 15 court means a court of New South Wales that has power to make local DVOs. 16 98ZM Power of court to vary or revoke recognised non-local DVOs 17 (1) A court may vary or revoke a recognised DVO that is a non-local DVO in 18 accordance with this Division as if the DVO were a local DVO. 19 (2) A court cannot vary or revoke a non-local DVO if it is a kind of DVO that 20 cannot be varied or revoked by a court in the jurisdiction in which the DVO 21 was made. 22 (3) A variation to or revocation of a recognised DVO that is done under this 23 Division is not limited in its operation to New South Wales. 24 (4) This Division does not apply to the variation or revocation of a foreign order 25 that is registered as a registered foreign order in New South Wales. 26 Note. Locally registered foreign orders (which in Part 13 are referred to as registered 27 external protection orders) can be varied or revoked under section 98. 28 (5) To avoid doubt, if a court varies a recognised DVO that was made in another 29 jurisdiction, the other jurisdiction continues to be treated, for the purpose of 30 this Part, as the jurisdiction in which the DVO was made. 31 98ZN Application for variation or revocation of recognised non-local DVO 32 (1) An application for the variation or revocation of a recognised DVO that is a 33 non-local DVO may be made to a court as if it were an application for variation 34 or revocation of a local DVO by any person who would be able to make the 35 application if the DVO were a local DVO. 36 (2) An application: 37 (a) is to be made to a court that would have power to hear the application if 38 the DVO were a local DVO, and 39 (b) is to be made in accordance with any requirements that would apply if 40 the DVO were a local DVO, and 41 (c) may be dealt with (subject to this Division) as if the DVO were a local 42 DVO. 43 Page 12 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 98ZO Decision about hearing of application 1 (1) A court that deals with an application for variation or revocation of a non-local 2 DVO may decide to hear the application or decline to hear the application. 3 (2) In making that decision, the court may consider the following matters (to the 4 extent relevant): 5 (a) the jurisdiction in which the defendant and the protected person or 6 persons under the DVO generally reside or are employed, 7 (b) any difficulty the respondent to the proceedings may have in attending 8 the proceedings, 9 (c) whether there is sufficient information available to the court in relation 10 to the DVO and the basis on which it was made, 11 (d) whether any proceedings are being taken in respect of an alleged 12 contravention of the DVO and the jurisdiction in which those 13 proceedings are being taken, 14 (e) the practicality of the applicant (if not the defendant under the DVO) 15 applying for and obtaining a local DVO against the defendant with 16 similar prohibitions or restrictions, 17 (f) the impact of the application on children who are protected persons 18 under the DVO, 19 (g) any other matters the court considers relevant. 20 (3) Without limiting the court's power to decline to hear an application, the court 21 may decline to hear the application if the court is satisfied that there has been 22 no material change in the circumstances on which the making of the order was 23 based and that the application is in the nature of an appeal against the order. 24 (4) For the purpose of exercising its functions under this Division, a court may 25 have regard to any information that the court considers relevant about the 26 making or variation of a DVO that is provided by an issuing authority of any 27 other jurisdiction. 28 Note. Division 4 enables the court to obtain information about DVOs from other 29 jurisdictions. 30 (5) A court must refuse to hear an application for variation or revocation made by 31 the defendant during any period in which, under the law of the issuing 32 jurisdiction for the DVO, the defendant is not entitled to apply for the variation 33 or revocation of the DVO in the issuing jurisdiction. 34 (6) In this section, the respondent to an application for variation or revocation of 35 a DVO means: 36 (a) in the case of an application made by the defendant under the recognised 37 DVO, the protected person or persons under the recognised DVO, and 38 (b) in any other case, the defendant under the recognised DVO. 39 Division 4 Exchange of information 40 Note. Section 25 of the Privacy and Personal Information Protection Act 1998 provides that a public 41 sector agency is not required to comply with a number of information protection principles (including 42 those that restrict the use and disclosure of personal information) where non-compliance is permitted 43 under an Act. The exchange of information in accordance with this Division is therefore not limited by 44 those information protection principles. 45 98ZP Issuing authorities may obtain DVO information 46 An issuing authority of New South Wales may obtain information about a 47 DVO from an issuing authority of another jurisdiction, or from a local or 48 Page 13 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 interstate law enforcement agency, and use that information for the purpose of 1 exercising its functions under this Part. 2 98ZQ Issuing authorities must provide DVO information 3 (1) An issuing authority of New South Wales that makes, varies or revokes a DVO 4 must provide to a court of any other participating jurisdiction any information 5 about the DVO that the court reasonably requests for the purpose of exercising 6 its functions under a corresponding law. 7 (2) An issuing authority of New South Wales that makes, varies or revokes a DVO 8 must provide to a local or interstate law enforcement agency any information 9 about the DVO that the law enforcement agency reasonably requests for the 10 purpose of exercising its law enforcement functions. 11 98ZR Law enforcement agencies may obtain DVO information 12 A local law enforcement agency may obtain information about a DVO from 13 an issuing authority of New South Wales or another jurisdiction, or from an 14 interstate law enforcement agency, and use that information for the purpose of 15 exercising its law enforcement functions. 16 98ZS Information to be provided to law enforcement agencies 17 A local law enforcement agency must provide to an interstate law enforcement 18 agency any information it holds about a DVO that the interstate law 19 enforcement agency reasonably requests for the purpose of exercising its law 20 enforcement functions. 21 Division 5 Miscellaneous 22 98ZT Certificate evidence--notification 23 (1) An authorised officer of New South Wales may issue a certificate in writing 24 certifying any of the following matters: 25 (a) that the making of a local DVO has been properly notified under the law 26 of New South Wales, 27 (b) that a variation to a DVO that was done in New South Wales has been 28 properly notified under the law of New South Wales. 29 (2) The certificate is admissible in evidence in any proceedings and is evidence of 30 the matters certified. 31 (3) A certificate in writing purporting to be signed by an authorised officer of 32 another jurisdiction and certifying any of the following matters is admissible 33 in evidence in any proceedings and is evidence of the matters certified: 34 (a) that the making of a DVO in that jurisdiction has been properly notified 35 under the law of that jurisdiction, 36 (b) that a variation to a DVO that was done in that jurisdiction has been 37 properly notified under the law of that jurisdiction. 38 (4) In any document, the words "authorised officer" after a signature are evidence 39 that the person whose signature it purports to be is in fact an authorised officer. 40 (5) In this section: 41 authorised officer of another jurisdiction means a person (whether or not 42 designated as an authorised officer) who is authorised under the law of another 43 jurisdiction to issue a certificate certifying that the making or variation of a 44 DVO has been properly notified under the law of that jurisdiction. 45 Page 14 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 authorised officer of New South Wales means: 1 (a) a registrar of a court of New South Wales, or 2 (b) a police officer in the NSW Police Force of or above the rank of 3 sergeant. 4 Note. The meaning of authorised officer in this section is different from the meaning of 5 that term in the rest of this Act or from the meaning that the term has in the Law 6 Enforcement (Powers and Responsibilities) Act 2002. 7 Division 6 Provisions consequent on enactment of Crimes 8 (Domestic and Personal Violence) Amendment 9 (National Domestic Violence Orders Recognition) Act 10 2016 11 Subdivision 1 Preliminary 12 98ZU Definition 13 In this Division, the commencement date means the date on which this Part 14 commences. 15 98ZV Enforcement of DVOs under other provisions 16 (1) This Part does not affect the enforceability in New South Wales, otherwise 17 than under this Part, of any local DVO made before the commencement date, 18 subject to subsection (3). 19 (2) This Part does not affect the enforceability in New South Wales, otherwise 20 than under this Part, of any interstate DVO or foreign order registered in New 21 South Wales, before the commencement date, under Part 13, subject to 22 subsection (3). 23 (3) However, a DVO made in New South Wales before the commencement date 24 can be superseded under section 98ZB, on or after the commencement date, by 25 a recognised DVO that is made later. 26 Subdivision 2 DVOs to which scheme applies 27 98ZW DVOs made in New South Wales 28 Division 2 applies to any local DVO or foreign order that is made in New 29 South Wales on or after the commencement date. 30 98ZX DVOs made in other jurisdictions 31 (1) Division 2 applies to any DVOs made in another participating jurisdiction that 32 are recognised DVOs in that jurisdiction under the corresponding law for that 33 jurisdiction. 34 (2) To avoid doubt, section 98Y extends to the following DVOs: 35 (a) any interstate DVO that was made in another participating jurisdiction 36 before the commencement date that is a recognised DVO in that 37 jurisdiction, 38 (b) any foreign order that became a registered foreign order in another 39 participating jurisdiction before the commencement date that is a 40 recognised DVO in that jurisdiction. 41 (3) Sections 98Z and 98ZA extend to any variation or revocation of a DVO 42 referred to in subsection (2), that was done in a participating jurisdiction 43 before the commencement date, as if the DVO were a recognised DVO. 44 Page 15 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 (4) However, a non-local DVO, and any variation to a non-local DVO, does not 1 become enforceable against the defendant in New South Wales, under this 2 Part, until the commencement date (even if the making of the DVO, or 3 variation, was properly notified before that date). 4 Subdivision 3 Extension of scheme to older DVOs 5 98ZY DVOs declared to be recognised DVOs 6 (1) Each of the following DVOs is also taken to be a recognised DVO: 7 (a) any DVO that is declared by a registrar of a court of New South Wales 8 to be a recognised DVO in New South Wales under Subdivision 4, 9 (b) any DVO that is declared by a registrar of a court of another 10 participating jurisdiction to be a recognised DVO in that jurisdiction 11 under a corresponding law. 12 (2) A recognised DVO referred to in subsection (1) becomes enforceable against 13 the defendant in New South Wales, under this Part, when the declaration is 14 made (despite section 98ZC). 15 98ZZ DVOs declared to be recognised in other jurisdictions before commencement 16 date 17 (1) To avoid doubt, section 98ZY extends to a DVO declared by a registrar of a 18 court of another participating jurisdiction to be a recognised DVO before the 19 commencement date. 20 (2) Sections 98Z and 98ZA extend to any variation or revocation of a DVO 21 referred to in subsection (1), that was done in a participating jurisdiction 22 before the commencement date, as if the DVO were a recognised DVO. 23 (3) However, the DVO, and any variation to the DVO, does not become 24 enforceable against the defendant in New South Wales, under this Part, until 25 the commencement date. 26 Subdivision 4 Power to declare DVO to be recognised 27 98ZZA Definition 28 In this Subdivision: 29 registrar means a registrar of a court of New South Wales that has power to 30 make a local DVO. 31 98ZZB Power to declare DVO to be recognised 32 (1) A registrar may, by order, declare any DVO made in any jurisdiction to be a 33 recognised DVO in New South Wales. 34 (2) A declaration may be made in relation to any DVO made in any jurisdiction 35 that is in force in the issuing jurisdiction and is not a recognised DVO in New 36 South Wales. 37 (3) The jurisdiction in which the DVO was made does not have to be a 38 participating jurisdiction. 39 (4) A registrar must make a declaration under this section if an application for the 40 declaration is made in accordance with this Subdivision, unless the registrar 41 decides to refuse to make the declaration in the interests of justice. 42 (5) Without limiting subsection (4), the registrar may refuse to make the 43 declaration if the registrar is not satisfied that the defendant has been properly 44 Page 16 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 notified of the making of the DVO under the law of the jurisdiction in which 1 the DVO was made. 2 Note. Under section 98ZY, the DVO becomes enforceable against the defendant when 3 the declaration is made. Subsection (7) of this section specifies that notice of the 4 declaration is not to be served on the defendant unless the person making the 5 application consents to service. 6 (6) However, a registrar cannot declare a general violence order to be a recognised 7 DVO in New South Wales. 8 (7) Notice of a declaration is not to be served on the defendant unless the person 9 who makes the application consents to service. 10 Note. Under section 98X, a foreign order is taken to be made in any jurisdiction in 11 which it is registered as a registered foreign order. Accordingly, this section extends to 12 registered foreign orders. 13 98ZZC Application for order 14 (1) An application for a declaration that a DVO is a recognised DVO in New 15 South Wales may be made by any person who would be able to make an 16 application for variation of the DVO if the DVO were a recognised DVO. 17 (2) The application must: 18 (a) be made in a form approved by the registrar, and 19 (b) be accompanied by any information or evidence the registrar requires. 20 Note. It is only necessary to make an application in one participating jurisdiction. Under 21 section 98ZY, once a declaration is made in any participating jurisdiction the DVO will 22 be treated as a recognised DVO in all participating jurisdictions. 23 98ZZD Functions of registrar may be exercised by court 24 A court with power to make a local DVO may exercise any of the functions of 25 a registrar of the court under this Subdivision. 26 Subdivision 5 Existing registered external DVOs 27 98ZZE Registered interstate DVOs 28 (1) The registration under Part 13 of any order made by a court of another State or 29 Territory that was registered under that Part as an external protection order 30 before the commencement date is not affected by the commencement of this 31 Part and this Act continues to apply in respect of the order as if this Part had 32 not commenced. 33 (2) The order is not a local DVO for the purposes of this Part (despite 34 section 97 (1) (a)). 35 Page 17 Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Bill 2016 [NSW] Schedule 1 Amendment of Crimes (Domestic and Personal Violence) Act 2007 No 80 (3) The order ceases to be registered under Part 13 if the order becomes a 1 recognised DVO in New South Wales. In that case, this Part applies to the 2 order in the same way as it applies to any other recognised DVO that is a 3 non-local DVO. 4 Note. Under this provision, an interstate order registered under Part 13 before the start 5 of the national recognition scheme will continue to be enforceable in New South Wales 6 as provided for by that Part. If the interstate order becomes a recognised DVO by 7 operation of section 98ZX or by declaration under section 98ZZB, the order ceases to 8 be registered under that Part and the order will then be enforceable in New South 9 Wales and nationally under the national recognition scheme. 10 Page 18
[Index] [Search] [Download] [Related Items] [Help]