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Crimes (Family Violence) (Amendment) Bill
Circulation Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the proposed Act, which is to amend the
Crimes (Family Violence) Act 1987--
· to ensure that intervention orders can be made by
consent; and
· to validate certain orders made by consent before the
commencement of this Act.
Clause 2 provides that the Act will commence on the day after the day on
which it receives the Royal Assent.
PART 2--AMENDMENTS OF CRIMES (FAMILY VIOLENCE)
ACT 1987
Clause 3 substitutes a new section 14 in the Crimes (Family Violence)
Act 1987 which allows a court to make an intervention order if
the parties to the proceeding consent to the making of the order.
This clause expands on the previous section 14 by allowing the
court to make an intervention order--
· without being satisfied of any of the matters referred to
in section 4(1) of the Crimes (Family Violence) Act
1987 or section 21A(5) of the Crimes Act 1958; and
· whether or not the defendant admits to any or all of the
particulars of the complaint.
This clause ensures that intervention orders can be made by the
court based solely on the grounds of the consent of the parties.
There is no requirement that the court hear evidence.
However, the amendment in this clause also provides that before
making an intervention order with the consent of the parties the
court may conduct a hearing in relation to the complaint if, in its
opinion, the interests of justice require it.
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This provides that, although the court does not have to hear
evidence when making an intervention order based on the parties'
consent, the court may hear evidence in any case in which it
considers evidence is necessary.
Clause 4 adds new section 25AB which validates certain orders made
pursuant to the Crimes (Family Violence) Act 1987 while
preserving the rights of parties involved in certain proceedings
before the commencement of this Act.
New section 25AB(1) ensures that intervention orders made
before the commencement of these amendments which were
made with the consent of the parties, without the court
necessarily being satisfied of any of the matters in section 4(1) or
section 21A(5) of the Crimes Act 1958, may not be ruled invalid
merely because they were made in this manner.
New section 25AB(2)(a) protects the rights of the parties to the
proceeding in the Supreme Court decision of Stephens v Melis &
Ors in which an intervention order was held to be invalid on the
grounds that it was made with the consent of the parties without
the court being satisfied of any of the matters referred to in
section 4(1). The rights in this case are expressly protected
because the validity of the order was raised on an originating
motion seeking the quashing of the order rather than on a
prosecution for a breach of the order and so this particular case is
not covered by new section 25AB(2)(b).
New section 25AB(2)(b) ensures that this Act will not alter the
positions of the parties who were involved in proceedings for a
breach of an intervention order where the proceedings were
dismissed before the commencement of this Act on the grounds
that the court made the intervention order without being satisfied
as to any of the matters referred to in section 4(1) of the Act or
section 21A(5) of the Crimes Act 1958.
In these cases, the intervention order will have been ruled to have
been invalidly made and clause 25AB(1) will not operate to
revive that order.
Clause 5 provides that the validation of certain orders provided for by
clause 4 is intended to alter or vary section 85 of the
Constitution Act 1975.
New section 25B(2) is necessary as this Act, by validating
existing intervention orders, removes an avenue of appeal that
was potentially available to recipients of intervention orders who
were convicted of a breach of that order before the
commencement of this Act.
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