Queensland Numbered Acts Queensland Numbered ActsChapter 11—
insert—
'In this part—
act of violence includes an attempted or threatened act of violence.
authorised person means—
(a) the chief executive; or
(b) a police officer.
civil banning order see section 129ZJ(1).
interim civil banning order see section 129ZP(2).
respondent see section 129ZJ(1).
'The purpose of this part is to provide for the making of civil banning orders to help—
(a) ensure the safety and security of persons using the public transport network; and
(b) preserve the amenity and condition of the public transport network; and
(c) protect revenue from the public transport network.
'(1) A civil banning order is an order made in relation to a person who is an adult (the respondent) that prohibits the respondent, until a stated date, from doing, or attempting to do, any of the following—
(a) using the public transport network for a period of not more than 12 months; or
(b) restricting, for a period of not more than 12 months, a person's use of the public transport network in 1 or more of the following ways—
(i) restricting the general route services or public transport infrastructure the person may use;
(ii) restricting the days, or the times or periods of a day, when the person may use the public transport network;
Examples—
restricting the use of the public transport network to during the day only
restricting the use of the public transport network to weekdays only
(iii) restricting the purpose for which the person may use the public transport network.
Examples—
restricting the use of the public transport network to travel to and from work or an educational institution
restricting the use of the public transport network to travel to and from a hospital or another place providing medical treatment
'(2) The stated date in the civil banning order must be a date no later than 12 months after—
(a) if an interim civil banning order is made—the day on which the interim civil banning order is made; or
(b) otherwise—the day on which the civil banning order is made.
'(3) A civil banning order takes effect—
(a) if the respondent or a legal or other representative of the respondent is present at the hearing of the application—when it is made; or
(b) otherwise—when the order is served on the respondent.
'An authorised person may apply to a Magistrates Court for a civil banning order to be made in relation to a respondent.
'(1) An application for a civil banning order in relation to a respondent must state the following—
(a) the name of the respondent;
(b) the details of the order sought;
(c) the information necessary to satisfy the court of the matters mentioned in section 129ZO(1) or (2);
(d) the details of any previous application for a civil banning order for the respondent and the outcome of the application;
(e) that affidavits in response to the application may be filed under section 129ZM;
(f) that the application may, under section 129ZN(2), be decided in the respondent's absence.
'(2) The application must be accompanied by any affidavit the authorised person intends to rely on at the hearing of the application.
'(3) The application, with any accompanying affidavit, must be—
(a) filed in the court; and
(b) served on the respondent within 10 business days after being filed.
'(1) The respondent may file affidavits to be relied on by the respondent for the hearing of the application.
'(2) The respondent must file the affidavits within 28 business days after the day the application is filed.
'(1) If a respondent appears before the court that is to hear and decide an application for a civil banning order, the court may—
(a) hear and decide the application; or
(b) adjourn the application, whether or not it makes an interim civil banning order; or
(c) dismiss the application.
'(2) If a respondent fails to appear before the court that is to hear and decide the application for a civil banning order and the court is satisfied that a copy of the application has been served on the respondent, the court may—
(a) proceed to hear and decide the application in the absence of the respondent; or
(b) adjourn the application, whether or not it makes an interim civil banning order; or
(c) dismiss the application.
'(1) The court may make a civil banning order for a respondent if satisfied—
(a) within 12 months before the date of the application for the civil banning order—
(i) the respondent committed a relevant act of violence; or
(ii) the respondent has been served 10 or more infringement notices for a relevant offence or relevant offences; and
(b) if paragraph (a)(ii) applies, the infringement notices have been dealt with under the State Penalties Enforcement Act 1999, part 3; and
(c) unless the order is made, the respondent would pose an unacceptable risk to—
(i) the good order or management of the public transport network; or
(ii) the safety and welfare of persons using the public transport network.
'(2) In considering whether to make, or the terms of, the order, the court must have regard to all of the circumstances of the case, including the following—
(a) whether the respondent is, or has been, subject to another civil banning order;
(b) whether the respondent is subject to a condition, relating to the use of the public transport network, under the Bail Act 1980, section 11;
(c) whether the respondent, or any other person, was charged with an offence arising out of the act of violence mentioned in subsection (1)(a)(i) and the result of any proceeding in relation to the charge;
(d) whether the respondent, or any other person, was charged with an offence arising out of a relevant offence mentioned in subsection (1)(a)(ii) and the result of any proceeding in relation to the charge;
(e) whether the respondent is subject to an exclusion order;
(f) the respondent's criminal history;
(g) whether the making of the order is likely to cause undue hardship to the respondent or the respondent's family—
(i) by depriving the respondent of the respondent's way of earning a living; or
(ii) in another way, including, for example, by depriving the respondent of the ability—
(A) to study; or
(B) to maintain the respondent's health or the health of a member of the respondent's family;
(h) the effect the order would have on the respondent's safety and wellbeing, having regard to the respondent's age and any physical, intellectual or psychiatric disability;
(i) any other of the respondent's personal circumstances and the likely effect of the order on those circumstances.
'(3) This section does not limit the matters to which the court may have regard in considering whether or not to make, or the terms of, a civil banning order under this part in relation to a person.
'(4) The court may impose any conditions it considers necessary on a civil banning order.
'(5) The court may make a civil banning order whether or not the respondent has been charged with, convicted of, acquitted of, or sentenced for an offence arising out of the act of violence mentioned in subsection (1)(a)(i).
'(6) For subsection (7), definition dealt with, a reference in the State Penalties Enforcement Act 1999, part 3 to an alleged offender is taken to be a reference to the respondent.
'(7) In this section—
dealt with, for an infringement notice for a relevant offence served on a respondent, means one of the following has happened under the State Penalties Enforcement Act 1999, part 3—
(a) the respondent has paid the fine for the infringement notice in full;
(b) the respondent has elected to have the matter of the relevant offence dealt with by a Magistrates Court and the matter has been finally decided against the respondent;
(c) the respondent has applied for approval to pay the fine for the infringement notice by instalments;
(d) the respondent's liability under the infringement notice has otherwise been discharged against the respondent under that Act, other than having been withdrawn under section 28, or cancelled under section 30, of that Act.
relevant act of violence means an act of violence—
(a) committed by a person on the public transport network, against another person or property, without a reasonable excuse; and
(b) of a nature that would cause a person on public transport infrastructure to reasonably fear bodily harm to any person or damage to property.
'(1) This section applies if an authorised person has made an application, under section 129ZL, for a civil banning order for a respondent.
'(2) The authorised person may apply to a Magistrates Court for an order (an interim civil banning order) for the respondent to be in force until—
(a) the court finally decides the application for the civil banning order; or
(b) the application for the civil banning order otherwise ends.
'(3) The application for the interim civil banning order must state—
(a) the information necessary to satisfy the court of the matters mentioned in subsection (7); and
(b) that affidavits in response to the application may be filed under subsection (5); and
(c) that the application may, under subsection (8), be decided in the respondent's absence.
'(4) The application, with any accompanying affidavit, must be—
(a) filed in the court; and
(b) served on the respondent within 5 business days after being filed.
'(5) The respondent may file affidavits to be relied on by the respondent for the hearing of the application.
'(6) The respondent must file the affidavits within 15 business days after the day the application is filed.
'(7) The court may make the interim civil banning order if the court is satisfied—
(a) the application has been served on the respondent; and
(b) there are reasonable grounds for believing there is sufficient basis to make a civil banning order.
'(8) The interim civil banning order may be made whether or not the respondent appears before the court or makes submissions.
'(9) An interim civil banning order may prohibit the respondent from doing, or attempting to do, anything that a person may be prohibited from doing by a civil banning order.
'(10) An interim civil banning order takes effect—
(a) if the respondent or a legal or other representative of the respondent is present at the hearing of the application—when it is made; or
(b) otherwise—when the order is served on the respondent.
'(1) The following persons may apply (the applicant) to the Magistrates Court for an order to vary or revoke a civil banning order—
(a) an authorised person;
(b) the respondent.
'(2) However, the respondent may not, without the leave of the court, make the application until at least 3 months after the civil banning order is made.
'(3) The application must—
(a) be in the approved form; and
(b) be accompanied by—
(i) an affidavit made by the applicant outlining why the variation or revocation mentioned in the application is necessary; and
(ii) the information, or details of the information, the applicant intends to rely on for the application.
'(4) Within 14 business days after the application is filed, the applicant must give a copy of the application to—
(a) if the applicant is the respondent—the authorised person; or
(b) if the applicant is an authorised person—the respondent.
'(5) The authorised person and respondent are each entitled to be heard at the hearing of the application.
'(6) If the respondent makes the application, subsection (3) does not prevent the respondent from producing further evidence at the hearing of the application.
'(7) The court may vary or revoke a civil banning order only if the court—
(a) has had regard to—
(i) the matters mentioned in section 129ZO so far as they are relevant to the application; and
(ii) whether the respondent has, without a reasonable excuse under section 129ZZ, contravened the civil banning order; and
(b) is satisfied there has been a material change in the circumstances of the respondent that justifies the variation or revocation; and
(c) considers the justice of the case requires the variation or revocation.
'(1) The Magistrates Court may make a civil banning order in a form agreed to by an authorised person and the respondent.
'(2) The order may include only matters that may be dealt with under this part.
'(1) Subsection (2) applies if a respondent appears before a court hearing an application for a civil banning order or an interim civil banning order for the respondent.
'(2) Before making the order, the court must explain, or cause to be explained, to the respondent—
(a) the purpose, terms and effect of the order; and
(b) the consequences of contravening the order; and
(c) for a civil banning order—that the order may be varied or revoked on the application of the respondent or an authorised person.
'(3) Subsection (4) applies if a respondent did not appear before a court when the court made a civil banning order or an interim civil banning order for the respondent.
'(4) Before serving the order on the respondent, the person serving the order must explain, or cause to be explained, to the respondent—
(a) the purpose, terms and effect of the order; and
(b) the consequences of contravening the order; and
(c) for a civil banning order—that the order may be varied or revoked on the application of the respondent or an authorised person.
'(5) The explanation under subsection (2) or (4) must be made in language or in a way likely to be readily understood by the respondent.
'(6) Failure to comply with this section does not affect the validity of the civil banning order.
'(1) The proper officer of the Magistrates Court that makes a civil banning order, or an order varying or revoking a civil banning order, in relation to a respondent must as soon as possible—
(a) reduce the order to writing in the approved form; and
(b) cause a copy of the order to be given or sent to—
(i) the respondent; and
(ii) the commissioner of the police service, or someone authorised to accept the order on the commissioner's behalf; and
(iii) the chief executive; and
(iv) the chief executive officer under the Transport Operations (TransLink Transit Authority) Act 2008.
'(2) The written order prepared under subsection (1) must include—
(a) the name of the respondent; and
(b) the period for which the order applies; and
(c) the prohibitions or restrictions that the order imposes.
'(3) Failure to comply with this section does not affect the validity of the order.
'The Magistrates Court must not award costs on proceedings under this division unless the court dismisses the application as frivolous or vexatious or another abuse of process.
'A fee is not payable for making an application, or filing another document, under this part.
'A question of fact in proceedings under this part, other than proceedings for an offence, is to be decided on the balance of probabilities.
'The Uniform Civil Procedure Rules 1999 apply in relation to applications made to the court under this part to the extent the rules are consistent with this part.
'(1) An application under this part may be made and a court may, as authorised by this Act, dispose of the application, even if a person concerned in the application has been charged with an offence arising out of the act of violence on which the application is based.
'(2) Subsection (4) applies if the person against whom—
(a) a civil banning order has been made; or
(b) a court has refused to make a civil banning order; or
(c) proceedings are current (current proceedings) in which a civil banning order or an order varying or revoking a civil banning order is sought;
is charged with an offence mentioned in subsection (1).
'(3) Also, subsection (4) applies if the person is charged with an offence mentioned in subsection (1) and the court has done either of the following relating to a civil banning order naming the person as the respondent—
(a) revoked, or refused to revoke, the civil banning order;
(b) varied, or refused to vary, the civil banning order, including the conditions imposed on the order.
'(4) A reference to—
(a) making, or refusing to make, the order, or a revocation or variation; or
(b) the existence of current proceedings; or
(c) the fact that evidence of a particular nature or content was given in—
(i) the proceedings in which the order, revocation or variation was made or refused; or
(ii) the current proceedings;
is inadmissible in the trial of the person for an offence arising out of the act of violence on which the application for the order, revocation, or variation, or relevant to the current proceedings, is based.
'(5) To remove any doubt, it is declared that, subject to this section, an application, proceeding or order under this part in relation to the conduct of the person does not affect any proceeding against the person for an offence arising out of the same conduct.
'(6) The person may be punished for the offence mentioned in subsection (5) despite any order made against the person under this part.
'(7) In this section—
civil banning order includes an interim civil banning order.
'(1) A person must not, without reasonable excuse, contravene a civil banning order.
Maximum penalty—40 penalty units or 6 months imprisonment.
'(2) It is a reasonable excuse for a person to contravene a civil banning order applying to the person—
(a) if, when the contravention happened, the person was not aware, and was reasonably not aware, that the order had been made; or
(b) if the person is contravening the order because of an emergency; or
(c) if—
(i) the person has applied for an order to vary the civil banning order; and
(ii) the court has not decided the application; and
(iii) the contravention of the civil banning order reasonably relates to the changed circumstances in relation to which the application is made.
Example for paragraph (c)—
A person to whom a civil banning order applies has a reasonable excuse if—
(a) the person has applied for an order to vary the civil banning order because—
(i) it restricts the person's use of the public transport network to only permit travel to and from the person's place of work; and
(ii) the person's place of work has changed; and
(b) the person uses the public transport network, in contravention of the civil banning order, to travel to and from the new place of work while the Magistrates Court is considering the application.
'(3) If the Magistrates Court convicts a person of an offence against subsection (1), the court may, in addition to or instead of sentencing the person under subsection (1), vary the civil banning order.
'(4) In this section, other than subsection (2)(c)—
civil banning order includes an interim civil banning order.
'An authorised person or a respondent in relation to whom a decision of the Magistrates Court under this part has been made may appeal against the decision to the District Court.
'(1) An appeal must be started within 1 month after the decision is made (the appeal period).
'(2) On application, the District Court may extend the appeal period.
'(1) A person starts an appeal by filing a notice of appeal with the registrar.
'(2) The notice must—
(a) be signed by the person or the person's lawyer; and
(b) state, briefly and precisely, the grounds of the appeal.
'(3) If the notice is not filed in the appeal period, the person must also file with the registrar a notice of application for extension of time for filing the notice.
'The registrar must give the respondent to an appeal copies of any of the following documents filed with the registrar for the appeal—
(a) the notice of appeal;
(b) a notice of application for extension of time for filing a notice mentioned in paragraph (a).
'An appeal does not stay the operation of the decision.
'(1) An appeal is by way of rehearing.
'(2) The District Court—
(a) has all the powers and duties of the court that made the decision appealed from; and
(b) may draw inferences of fact, not inconsistent with the findings of the court; and
(c) may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit or in another way; and
(d) may order that the matter be remitted for rehearing to the court in which the decision appealed from was made.
'(3) Subsection (2)(a) does not limit the powers that the District Court has in its civil jurisdiction.
'(4) The decision of the District Court upon an appeal is final and conclusive.
'The District Court must not award costs on an appeal under this division unless the court dismisses the appeal as frivolous or vexatious or another abuse of process.
'(1) This section applies if a provision of this part requires a respondent to be served with a document.
'(2) The document must be served personally on the respondent.
'(3) However, if, despite reasonable attempts being made, a document is unable to be personally served on a respondent, an authorised person may apply to the Magistrates Court to authorise substituted service under subsection (4).
'(4) If it appears to the court that it is not reasonably practicable to serve the document personally on the respondent, the court may authorise another way of serving it (substituted service).
Example of substituted service—
by personal service of the document on a relative, guardian or other person with whom the respondent is known to associate
'(5) When serving a document that requires the appearance of a respondent in a court, the person serving the document must explain the contents of the document to the respondent in language likely to be understood by the respondent, having regard, for example, to the respondent's age and cultural, educational and social background.
'(1) The chief executive may ask the commissioner of the police service to give the chief executive the information the chief executive requires to make, or to consider making, an application for a civil banning order in relation to a person.
'(2) Without limiting subsection (1), the information may include the following—
(a) the criminal history of the person;
(b) police statements in relation to any act of violence committed by the person;
(c) statements of witnesses or victims of any act of violence committed by the person;
(d) other evidentiary material relating to any act of violence committed by the person.
'(3) Subject to subsection (4), the commissioner must provide the information requested.
'(4) The obligation of the commissioner to comply with the chief executive's request applies only to information in the possession of the commissioner or to which the commissioner has access.'.