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Personal Safety Intervention Orders Bill
2010
Introduction Print
EXPLANATORY MEMORANDUM
Introduction
The purposes of this Bill are:
· to establish a system of protection for those who have
experienced prohibited behaviour or stalking from a person
other than a member of their family;
· to encourage the use of mediation services for appropriate
matters to settle interpersonal disputes.
This protection order scheme replaces the system established by the Stalking
Intervention Orders Act 2008.
The system of civil personal safety intervention orders established under this
Bill will provide protection for individuals from future acts of prohibited
behaviour or stalking. For appropriate interpersonal disputes, the parties may
be referred to mediation services to attempt to resolve the underlying dispute
behind alleged inappropriate behaviour and achieve a lasting resolution.
In addition, many acts that constitute prohibited behaviour or stalking under
this Bill will also constitute criminal offences under other legislation.
Criminal acts will continue to be prosecuted, where appropriate, under other
legislation and criminal penalties applied.
The Personal Safety Intervention Orders Bill 2010 (the Bill)--
· makes provision for personal safety intervention orders;
· promotes mediation of appropriate matters;
· repeals the Stalking Intervention Orders Act 2008;
· amends the Family Violence Protection Act 2008 to address
operational issues and ensure that the family violence
intervention orders scheme and the personal safety intervention
orders scheme are procedurally aligned;
561326 1 BILL LA INTRODUCTION 8/6/2010
· makes consequential amendments to the Bail Act 1977, the
Children, Youth and Families Act 2005, the Corrections Act
1986, the Crimes Act 1958, the Evidence (Miscellaneous
Provisions) Act 1958, the Firearms Act 1996, the Health
Records Act 2001, the Magistrates' Court Act 1989, the
Police Regulation Act 1958, the Residential Tenancies Act
1997 and the Sentencing Act 1991.
Part 1 provides for the purpose and commencement of the Bill. Part 2
defines the key words and phrases, including what behaviour is considered
"prohibited behaviour" or "stalking" in order to obtain the protection of a
personal safety intervention order.
Part 3 of the Bill sets out how an application for a personal safety
intervention order is made, how appropriate matters may be referred for
mediation assessments or mediations, the power of the court to make interim
orders, how proceedings are conducted, the power of the court to order an
assessment report in the Children's Court, the court's power to make final
orders and the conditions that may be included on an order and how long an
order will last. Once an order has been made, this part outlines how it can be
varied, revoked or extended. This part also outlines how a decision can be
appealed and provides that contravening the conditions of a personal safety
intervention order is a criminal offence.
Part 4 sets out the jurisdiction of courts under the Bill.
Part 5 provides for the enforcement powers available to police officers,
including powers of entry and search and seizure of firearms, certain
weapons, firearms authorities and ammunition.
Part 6 sets out the restrictions on publication of proceedings relating to this
Bill.
Part 7 explains the relationship between the Bill and other relevant Acts, such
as the Children, Youth and Families Act 2005, Firearms Act 1996 and
Control of Weapons Act 1990.
Part 8 governs the relationship between the Bill and the Family Violence
Protection Act 2008.
Part 9 provides for the registration of civil protection orders made in other
States and Territories and in New Zealand.
Part 10 provides a regime for those who abuse the court system by
vexatiously making applications under the Bill, and other intervention order
systems, to be declared vexatious litigants and have restrictions placed upon
their access to the court system under this Bill.
Part 11 outlines the procedure for service of documents under the Bill.
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Part 12 provides for the limitation on the jurisdiction of the Supreme Court
and sets out various miscellaneous provisions including rule and regulation-
making powers under the Bill.
Part 13 provides for the repeal of the Stalking Intervention Orders Act
2008 and for transitional arrangements between the old and new systems.
Part 14 makes various consequential amendments to other Acts.
These consequential amendments include changes to the Family Violence
Protection Act 2008 that will insert a Part to govern the intersection between
the two intervention order systems, mirroring Part 8 of this Bill.
Clause Notes
PART 1--PRELIMINARY
Part 1 sets out the purposes of the Bill, how the purposes will be achieved
and when the Bill will commence.
Clause 1 outlines the main purposes of the Bill.
Clause 2 states how the purposes are to be achieved.
Clause 3 provides that the Bill will commence on 1 January 2012 if it is
not proclaimed before that date. However, parts of the Bill, or
the whole Bill, may be commenced earlier than 1 January 2012.
PART 2--INTERPRETATION
Part 2 defines the key words and phrases used in the Bill. In particular, this
Part sets out what behaviour is considered "prohibited behaviour" or
"stalking" in order to obtain the protection of an order.
Clause 4 defines certain words and phrases used in the Bill. Of particular
note is that safety is defined to mean "safety from physical or
mental harm". Mental harm is defined to mean "grief, anxiety,
distress or trauma".
Clause 5 defines the meaning of prohibited behaviour. This definition is
significant as under clause 61 an affected person must have
experienced prohibited behaviour or stalking to obtain the
protection of a final personal safety intervention order.
The following behaviour is prohibited behaviour under
clause 5--
· assault;
· sexual assault;
· harassment;
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· property damage or interference;
· making a serious threat.
Clause 6 provides definitions of assault and sexual assault for the
purpose of the Bill.
The definition of assault mirrors the definition of assault in
section 31(2) of the Crimes Act 1958.
Sexual assault means an assault of a sexual nature.
Clause 7 provides a definition of harassment for the purpose of the Bill.
Harassment means a course of conduct by a person towards
another person that is demeaning, derogatory or intimidating.
It explicitly includes a course of such conduct that is carried on
by or through a third person.
This clause includes some examples of behaviour that is
harassment, including harassment conducted through a willing
or unwilling third party. Other examples are targeted at
prejudiced harassment.
Clause 8 provides a definition of property damage or interference for
the purpose of the Bill.
Damage to, destruction of, or interference with property, or
threats to do so, must be repeated and intentional for to meet the
definition of property damage or interference under the Bill.
This is to ensure that one-off and inadvertent property damage
or interference (such as accidentally damaging a person's car)
does not constitute prohibited behaviour and grounds for a
personal safety intervention order.
This clause provides some examples of behaviour that is
property damage or interference.
The third example, of threatening to kill or injure the person's
pet, makes it clear that a pet is a form of property for the
purposes of this Bill.
Clause 9 provides a definition of serious threat for the purpose of the
Bill.
A serious threat means a threat to kill or inflict serious injury,
as defined in the Crimes Act 1958.
Clause 10 defines the meaning of stalking, and is drawn from the crime of
stalking in section 21A of the Crimes Act 1958. Stalking is
serious intentional pursuit-type behaviour causing physical or
mental harm to a person or arousing their apprehension or fear
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for their safety or the safety of someone else. It can include
keeping someone under surveillance and cyberstalking.
A person who commits stalking as defined under this Bill may
also be charged with the criminal offence of stalking.
Under the Stalking Intervention Orders Act 2008 the only
ground for an intervention order was stalking. As such, it
became a "catch all" provision for other types of behaviour that,
although they came within a broad reading of the definition of
stalking, were not necessarily pursuit-type stalking. It is
intended that only pursuit-type stalking will be covered by the
term "stalking" under this Bill.
Clause 11 provides for circumstances in which the Bill does not apply.
These exceptions are based on section 21A(4) of the Crimes
Act 1958. Essentially, these provisions mean that a person
performing certain types of official duties does not commit
prohibited behaviour or stalking for the purposes of this Bill.
PART 3--APPLICATIONS FOR INTERVENTION ORDERS
Part 3 of the Bill sets out how an application for a personal safety
intervention order is made, how appropriate matters may be referred for
mediation assessments or mediations, the power of the court to make interim
and final orders, how proceedings are conducted, the power of the court to
order an assessment report in the Children's Court and the conditions that
may be included on an order and how long an order will last. Once an order
has been made, this Part outlines how it can be varied, revoked or extended.
This Part also outlines how a decision can be appealed and provides that
contravening the conditions of a personal safety intervention order is a
criminal offence.
Division 1--Applications for intervention orders
Division 1 of Part 3 of the Bill sets out the processes and procedures involved
in applying for an order. In particular, this division outlines who may apply
for an order and how an application is to be made.
Clause 12 states that an application must be made at the proper venue of
the Magistrates' Court or Children's Court. Proper venue is
defined in clause 4 by reference to the meaning in section 3(1)
of the Magistrates' Court Act 1989 for the Magistrates' Court
and section 3(1) of the Children, Youth and Families Act
2005 for the Children's Court.
Clause 13 outlines how an application is to be made. An application must
include information that is prescribed under the rules made
under this Bill. It also must be sworn or affirmed or, in the case
of a police officer, may be certified.
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If the information in the application is sworn or affirmed, it will
satisfy the requirements for evidence on an interim hearing
under clause 38.
Clause 14 provides that an application may be made by telephone, fax or
other electronic means outside of normal court hours or in
remote areas if the application is made by a police officer.
Clause 15 outlines who may apply for a personal safety intervention order.
A police officer is able to apply on behalf of an affected person
however, the final order available is limited by clause 63
(where the affected person does not consent to the application).
An affected person or if the affected person is an adult, any
other person with the written consent of the affected person, can
apply in person for a personal safety intervention order to
protect himself or herself from prohibited behaviour or stalking
or to protect their property. This is to ensure that a person can
obtain an order without the need to involve the police or to have
legal representation.
If the affected person is a child, an application may be made by
a parent, by another person with the written consent of the
parent, or by the child if the child is of or above 14 years and
the court has given leave. This is to ensure that children are not
usually applicants for orders and there is another person taking
responsibility for bringing the application.
If the affected person has a guardian, an application can be
made by the guardian or by any other person with the leave of
the court, or a police officer. This is to ensure that guardians
have the power to take protective action.
Clause 16 provides further guidance to the court when leave is sought to
bring an application under clause 15.
Clause 16(1) provides that the court must grant leave if it is in
the best interests of the affected person to do so, where the
application relates to a person with a guardian or a child where
the parent has given written consent.
Clause 16(2) provides that the court may only grant leave for a
child of or above the age of 14 years where it is satisfied the
child understands the nature and consequences of a personal
safety intervention order. This is to ensure that applications for
children are usually brought by another person, except in
circumstances where the child has sufficient maturity to bring
the matter himself or herself.
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Clause 17 relates to applications for a child and the child's parent.
Clause 17(1) states that an application may be heard together
for a child and the child's parent where the application arises
from the same or similar circumstances. This is to ensure that
families do not need to go through two separate hearings about
similar matters, thereby reducing trauma from court
proceedings and making the court process more efficient.
Clause 17(2) states that the matters may be heard separately if
the applicant or respondent requests, and if the court thinks fit.
The court must take into account any advantages of the matters
being heard together.
Clause 18 prohibits making a personal safety intervention order against a
child who is under the age of 10 years at the date of application.
This is designed to reflect the fundamental principle of criminal
law that children under ten years of age cannot be held
criminally responsible.
The clause provides that if the court knows that the child was
aged under ten years, it must not make a personal safety
intervention order against that child. If the court mistakenly
makes a personal safety intervention order against a child who
is under the age of ten years at the date of application, the order
will have no effect.
Clause 19 outlines who must be served with the application for an order.
This is to ensure that all relevant persons are aware of the
application and can attend court on the first mention date.
Clause 20 provides that a registrar may issue a summons requiring the
respondent to attend court once an application has been made.
Failure to attend in answer to the summons is not an offence or
breach of any bail conditions, but may result in a personal
safety intervention order being made in the absence of the
respondent.
Clause 21 provides that a Magistrate or registrar may issue a warrant to
arrest an adult respondent once an application for a personal
safety intervention order has been made. Allowing a warrant to
issue in these circumstances is another way for police to
respond to prohibited behaviour or stalking, particularly after
hours, as bail conditions which protect the affected person may
be set.
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Clause 21(1) provides the grounds for when a warrant may be
issued. A warrant may only be issued for an adult.
Clause 21(2) provides that a police officer can arrest a
respondent even if the execution copy of the warrant is not in
the police officer's possession.
Clause 22 provides the procedures for requesting a warrant.
Clause 23 outlines how the Bail Act 1977 applies where a warrant has
been issued under clause 21.
Clause 23(1) provides that the Bail Act 1977 applies where a
warrant has been issued as if the respondent were an accused
person charged with an offence. This means that once a
warrant has been issued, a police officer or court must consider
whether to grant bail or apply to have the respondent remanded
in custody in accordance with the Bail Act 1977. If bail is
granted, conditions may be imposed. For example, bail may
include a condition that the respondent not approach or contact
the affected person.
Clause 23(2) provides that the affected person must be advised
of the outcome of the application for bail and, if bail is granted
with any special conditions to protect the affected person, the
terms of those conditions. The affected person must also be
given a copy of the undertaking of bail. This is to ensure that
the affected person is aware of any conditions that restrict the
respondent's behaviour and can report any violations of these
conditions to police.
Division 2--Mediation
Division 2 of Part 3 of the Bill outlines the process and system of court
directed mediation assessments and mediations.
Clause 24 defines words and phrases used in Division 2.
Clause 25 provides that, whether or not the person has made an
application for a personal safety intervention order, a registrar
may provide information about mediation to a person. It is
intended that registrars will be able to provide parties with
information about mediation when they first contact the court,
or later in the process, if they have not yet been informed.
This is so the person can make an informed decision on whether
they wish to pursue mediation, a personal safety intervention
order or both.
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Clause 26 Clause 26(1) provides that the court has the power to give a
mediation direction. This direction may:
· require the parties to attend a mediation assessment;
· require the parties to attend mediation;
· require the parties to attend a mediation assessment, and
if the matter is assessed as suitable for mediation, a
mediation.
This is to ensure that the court is able to refer matters that may
be appropriate for mediation to a mediation assessment, and
mediation if assessed as appropriate. The court may make a
mediation direction as well as, or instead of, making a personal
safety intervention order.
The court must not direct parties to mediation unless it has
received a mediation assessment certificate that specifies that
the matter is suitable for mediation. This is to ensure that only
matters that are assessed as appropriate for mediation are sent to
mediation. Mediation assessments will be conducted by trained
Dispute Assessment Officers.
The court may adjourn a personal safety intervention order
proceeding if it makes a direction under clause 26 to provide
time for the mediation assessment, mediation, or both the
mediation assessment and mediation to occur. While the court
may adjourn the matter, it may also stand down the matter, for
example if the court is aware that a Dispute Assessment Officer
is available at court that day to conduct a mediation assessment.
A direction under clause 26 does not apply to an applicant who
is a police officer or an applicant who is not the affected person
and who the court has excluded from the order.
Clause 27 provides that if the court makes a direction under clause 26 that
parties attend mediation, or that parties attend a mediation
assessment and a mediation if the matter is assessed as suitable,
and an existing personal safety intervention order would
prevent mediation occurring, then the court must, of its own
motion, vary conditions of the order to enable mediation to
occur. This is because there are circumstances where it may be
safe and appropriate for parties to have a personal safety
intervention order in place to manage the inappropriate
behaviour and also attend mediation to resolve an underlying
dispute.
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Clause 28 provides that the when the court makes a direction under
clause 26 that involves a mediation assessment, the mediation
provider must issue a mediation assessment certificate before
the next return date or an earlier time or date specified by the
court.
Clauses 28(2) and (3) outline what the mediation assessment
certificate must specify, including if a party did not attend the
mediation assessment and identifying that party.
This is to ensure that the court is informed of the progress and
outcome of the mediation direction and can take that into
account when deciding whether to make a personal safety
intervention order, as provided by clause 33.
Clause 29 provides that in conducting a mediation assessment, the dispute
assessment officer must have regard to guidelines issued under
clause 34. This is to provide transparency for the mediation
assessment process, by setting out in guidelines the matters that
the dispute assessment officer must have regard to when
determining whether a matter is appropriate for mediation.
Clause 30 clause 30(1) provides that where the court has given a
mediation direction under clause 26(1)(b) or (c) and the matter
is assessed as suitable for mediation, the mediation provider
must, by the next return date or any earlier date specified by the
court, issue a mediation certificate.
Clauses 30(2) and (4) outline what the mediation certificate
must specify, including if a party did not attend mediation and
identifying that party. Subclause (3) permits the certificate to
include other information if the parties consent to providing that
information to the court. This may be information specifying
that parties have resolved certain issues in the dispute, but not
others. For example, the parties may agree to tell the court that
they have resolved the barking dog issue but not the fence
issue. It is intended that any information that the parties choose
to provide will be high-level and not discursive.
Mediation certificates are designed to ensure that the court is
informed of the progress and outcome of mediation when
deciding whether to make a personal safety intervention order
or to vary or revoke and order, as provided by clause 33.
Clause 31 provides that the mediator may decide at any time after a matter
has been assessed as appropriate for mediation, that it is no
longer appropriate for mediation. The mediator must have
reference to the guidelines made under clause 34 when making
this decision.
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If the mediator decides that the matter is no longer appropriate
for mediation, they must terminate the mediation and issue a
mediation certificate that states that the matter is no longer
appropriate for mediation, as per clause 30(2)(f).
This is so that if the dynamics between the parties change, or if
the mediator becomes aware of information that may not have
been available to the dispute assessment officer, the mediator is
not forced to mediate an unsuitable matter. It also ensures the
court is informed of this decision, and can take that into account
when deciding whether to make a personal safety intervention
order, as provided by clause 33.
Clause 32 provides that a party who does not attend a mediation
assessment or a mediation is not guilty of an offence, and is not
in contempt of court.
The consequence of not complying with a mediation direction
is that the court may take this into account when making an
order, as provided by clause 33.
Clause 33 provides that if the court has given a mediation direction under
clause 26, when deciding whether to make a personal safety
intervention order or to vary or revoke a personal safety
intervention order, the court may take into account the contents
of a mediation assessment certificate or mediation certificate.
The court may also take into account the fact that a party did
not attend a mediation assessment or a mediation and that
party's reasons for not attending.
This allows the court to consider the appropriateness of the
matter for mediation, and the parties' willingness or resistance
to attend mediation assessment or mediation, along with
reasons for a failure to do so, in the decision about whether to
make a personal safety intervention order. It also allows the
court to consider any matter included in the mediation
certificate by consent--for example, the parties have resolved
the barking dog issue but not the fence issue.
It will be for the court to decide in each circumstance
what weight and meaning, if any, should be given to the
mediation assessment certificate and the mediation certificate.
However, the mediation assessment certificate or mediation
certificate may be relevant to determining whether behaviour is
likely to continue, or whether resolving the underlying dispute
that led to the inappropriate behaviour may mean that it is
unlikely to continue for the purposes of clause 61. It may also
be relevant to determining whether it is appropriate in all the
circumstances of the case to make an interim order under
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clause 35 or a final order under clause 61. If a party applies for
a personal safety intervention order and the matter is assessed
as suitable for mediation and the party does not attend
mediation without a good reason, the court may decide that it is
not appropriate to make a personal safety intervention order in
all the circumstances of the case.
Clause 34 provides that the Attorney-General may issue guidelines that
dispute assessment officers and mediators must consider when
deciding whether or not a matter is suitable for mediation.
The guidelines must be published on the Department's internet
site.
The guidelines will inform the decisions of dispute assessment
officers and mediators as to what kinds of matters are
appropriate for mediation and will promote consistency and
transparency of decision-making. The guidelines will be
designed to ensure that mediation only proceeds in situations
where it is safe and appropriate for it to do so.
Division 3--Interim orders
Division 3 of Part 3 of the Bill outlines the circumstances in which an interim
order may be made prior to the determination of an application for a final
order and when an interim order expires.
Clause 35 provides the power for the court to make an interim order.
Clause 35(1) states that the court can make an interim order
where there is an application for a personal safety intervention
order and the court is satisfied--
· on the balance of probabilities, that an interim order is
necessary, pending a final decision about the
application, to ensure the safety of an affected person or
to preserve any property of the affected person; and
· that it is appropriate to make an order in all the
circumstances of the case.
This provision has the effect that, despite the other limbs of the
tests being made out, the court has a discretion not to make an
interim personal safety intervention order if it is satisfied that an
order would be inappropriate in all the circumstances of the
case.
For example, if a person applies for a personal safety
intervention order and is directed to attend a mediation
assessment but does not attend without a good reason, the court
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may decide that it is not appropriate to make an interim order in
all the circumstances of the case.
Clause 35(4) provides that, without limiting the court's
considerations, in deciding whether it is appropriate to make an
interim order in all the circumstances of the case the court may
consider--
· if the respondent is a child, the respondent's ability to
understand the nature and effect of the order and
comply with its conditions, taking into account his or
her age and maturity;
· if the court is satisfied that the respondent has a
cognitive impairment, the respondent's ability to
understand the nature and effect of the order and
comply with its conditions, taking into account his or
her cognitive impairment.
This is because an order will be unworkable if the respondent
does not have the ability to understand and comply with their
obligations under a personal safety intervention order due to
their age or impairment.
Clauses 35(2) and 35(3) provide that the court can also make an
interim order where the parties consent to, or do not oppose, the
making of an interim order without being satisfied of the test
for an interim order, and whether or not the respondent admits
to any of the particulars of the application.
Clause 35(5) clarifies that behaviour that occurs interstate, or
occurs when the affected person is interstate, may be relevant
for the purposes of personal safety intervention order
proceedings. This is so a person is not denied the protection of
a personal safety intervention order where a connection to
Victoria exists.
Clause 36 precludes the making of an interim personal safety intervention
order where there is an existing family violence intervention
order under which the affected person is a protected person and
the respondent is a respondent, or the respondent is a protected
person and the affected person a respondent. This is because
the intention is that if parties are in a "family" or "family-like"
relationship, the matter must be heard under the Family
Violence Protection Act 2008, while if they are not in a
"family" or "family-like" relationship, the matter must be heard
under the Personal Safety Intervention Orders Bill 2010.
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However, the provision does not preclude the making of an
interim personal safety intervention order where there is an
existing interim family violence intervention order for which
the respondent is a protected person and the affected person is a
respondent. This is because a person making an application for
an interim personal safety intervention order where they are the
respondent to an existing interim family violence intervention
order (in other words, a cross-application) may dispute their
characterisation as a family member of the other party and
should not be denied interim protection. In making an interim
family violence intervention order, the court will not have had
to make a finding as to whether the parties are family members
or whether family violence has been committed.
Clause 37 provides that an interim order may be made if the respondent
has not been served with the application or is not present in
court. This is because an interim order is a temporary measure
of protection prior to a final hearing for a personal safety
intervention order.
Clause 38 states that an application for an interim order must be supported
by oral or affidavit evidence unless the application is made by
electronic communication by a police officer and the
requirement is waived.
Clause 38(1) provides that the court must not make an interim
order without oral evidence or an affidavit unless the order is
made by consent, the parties do not oppose the interim order
being made or the application is made by telephone, fax, or
other electronic communication by a police officer. This is to
ensure that the court has been provided with evidence prior to
making an interim order. This is particularly important as an
interim order can be made without the respondent being aware
of the application (see clause 37).
Clause 38(2) provides that there is no obligation on the affected
person to give evidence in order to obtain an interim order.
Oral or affidavit evidence may be presented by, for example, a
police officer who attended an incident, a witness to an incident
such as a friend or family member, a medical professional who
has treated the affected person or any other person with relevant
information to provide to the court. This is to ensure that if an
affected person does not feel able to provide evidence, the court
can still consider any other relevant evidence and make an
interim order for the affected person's protection.
If an application for a personal safety intervention order sworn
or affirmed under clause 13, the requirement for affidavit
evidence will be satisfied.
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Clause 39 provides that an interim order can be made for the protection of
more than one affected person. This is to ensure that the
immediate protection of an interim order can apply to all
affected persons and that separate court hearings do not need to
be conducted for each affected person. For example, children
of an affected person could also be protected by an interim
order under this clause.
Clause 40 outlines the court's obligations to explain the nature and
consequences of an interim personal safety intervention order.
Clause 40(1) provides that written explanation of the interim
order must be given to the respondent and the protected person
and that this explanation must cover the listed matters.
Clause 40(2) provides that, along with the written explanation
of the interim order, the registrar may provide written
information about any relevant services that may be available to
the protected person or the respondent, such as counselling
services, drug and alcohol services, disability services, financial
counselling services, mental health services and advocacy
services. This is designed to ensure that if there is an
underlying issue causing the respondent's prohibited behaviour
or stalking, the respondent is notified of appropriate services
known to the registrar that may be able to assist the respondent
to address that behaviour.
Clause 40(3) provides that if the court has given a mediation
direction under clause 26(1), the registrar must provide the
respondent and the protected person with written information
about mediation assessments and mediation along with the
written explanation of the interim order. This is to help the
parties understand the mediation assessment and mediation
process.
Clause 40(4) outlines how the written information under clause
40(1) and any additional information explanation under clauses
40(2) and (3) must be given to and explained or served on the
respondent and protected person as the case may be.
Clause 40(5) provides that the registrar need not give an oral
explanation under clause 40(4)(a) if satisfied that the magistrate
gave a clear oral explanation on making the order.
Clause 40(6) provides that a failure to provide the explanation
does not make the interim order invalid.
Clause 40(7) provides that a failure to provide information
about mediation assessments and mediation does not affect the
validity of a mediation direction.
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Clause 41 outlines matters that the court must inform the police officer of
where an interim order is made via telephone, fax or other
electronic communication under clause 35. This is to ensure
that all relevant details are recorded by the police officer on the
interim order. A note draws attention to section 5(2) of the
Magistrates' Court Act 1989, which provides that a court,
constituted by a magistrate, may sit and act at any time and
place in an attempt to clarify that a magistrate can make interim
orders after hours even from his or her home.
Clause 42 provides that if an interim order is made, the matter should
be listed for final determination as soon as practicable unless
the court has also given a mediation direction.
Where the court has also given a direction under clause 26, the
matter should be listed for a decision about the final order as
soon as practicable, while providing a reasonable time period
for the mediation assessment and/or the mediation to take place.
This recognises that the interim order may have been made
without the court hearing from the respondent.
Clause 43 outlines when an interim order will expire. This clause ensures
that the protection of an interim order will last until the court
has determined whether to make a final order. If the court
makes a final order, the court may order that the interim
protection continues until the final order has been served on the
respondent. This is to ensure that there is no gap in protection
for the affected person while police locate the respondent to
serve the final order. The interim order expires if the court
refuses to make a final order, revokes the interim order or if an
application for the personal safety intervention order is
withdrawn prior to the final determination of the application.
Division 4--Proceedings for personal safety intervention
orders
Division 4 of Part 3 of the Bill outlines how the court will consider an
application for a personal safety intervention order, including how evidence
may be presented.
Clause 44 provides the particular circumstances when a court can hear a
contested application on a mention date. It is expected that
contested applications will not usually be heard on a mention
date. Rather they would be adjourned and listed as contested
hearings to enable the parties to prepare their cases and arrange
legal representation. There may be some instances, however,
when all parties wish a contested hearing to be heard and
determined on the mention date. To ensure no party feels
16
pressured to have a contested hearing on a mention date, even if
there is time to hear the matter, this clause sets out a list of
matters the court must be satisfied about. In particular--
· that the parties have had the opportunity to seek legal
advice and legal representation;
· that all the parties to the proceeding consent to the
contested hearing for the final determination taking
place on the mention date; and
· that it is fair and just to all the parties to conduct the
contested hearing on the mention date.
Clause 44(2)(a) provides that clause 44(1) does not stop the
court making a final order on the mention date if the application
is not contested and all the parties consent to, or do not oppose,
the making of the order.
Clause 44(2)(b) makes clear the court may make a final order
on the mention date if the respondent has been served with the
application but has not attended court on the mention date.
Clause 45 provides that any number of applications for personal safety
intervention orders may be heard together if the court thinks fit.
The decision to hear applications together may be made on the
application of the applicants or respondents or on the court's
own initiative. This is to ensure efficiency in the court process.
A note highlights that under clause 133 the court can also hear
applications for personal safety intervention orders together
with applications for family violence intervention orders.
Clause 46 outlines how an affected person may object to an application
brought on his or her behalf. This clause is included to ensure
that while a parent, a guardian or a police officer has power
under the Bill to apply for protection for the affected person, the
affected person can also convey his or her views to the court.
Clause 47 concerns the rules of evidence for proceedings under the Bill.
Clause 47(1) states that, except as provided in the Bill, the court
may inform itself in any way it thinks fit, despite any rules of
evidence to the contrary, except in criminal matters. This is
particularly relevant for applicants and respondents who are not
legally represented and means that the court may, for example,
consider hearsay evidence.
17
Clause 47(2) provides that some provisions of the Evidence
Act 2008 and the Evidence (Miscellaneous Provisions) Act
1958 which provide protection for witnesses will continue to
apply.
Clause 47(3) provides that the court may refuse to admit or
limit the use of evidence where the court considers it is just and
equitable to do so or where the probative value of the evidence
may be outweighed by the danger that the evidence could be
misleading, confusing or unfairly prejudicial. This is to ensure
that the removal of the rules of evidence does not unfairly
prejudice a party to proceedings.
Clause 48 provides that evidence may be admitted via affidavit or sworn
statement. This is to ensure that witnesses do not need to attend
the hearing to give their evidence in person. However, a person
can be required to attend court and be cross-examined on that
evidence according to subclause (3).
Clause 49 provides that a child, other than an applicant or respondent for
an order, must not give evidence in a proceeding unless given
leave by the court. In deciding whether to grant leave, the court
must consider the desirability of protecting children from
unnecessary exposure to the court system and any harm that
could occur to the child if the child was required to give
evidence in the proceedings.
Clause 50 clarifies that section 194 of the Evidence Act 2008 applies to a
proceeding for a personal safety intervention order. A note
explains that section 194 of the Evidence Act 2008 provides
that the court may issue a warrant to arrest a witness who fails
to appear at a hearing when called or to arrest a witness who is
avoiding service of a subpoena or summons or who has been
served with a subpoena but is unlikely to comply with it.
Clause 51 provides that the Magistrates' Court will have a discretion
similar to that in section 126 of the Magistrates' Court Act
1989 to close court proceedings, or limit those who may attend,
to protect a witness or a party from undue distress or
embarrassment. A penalty of 1000 penalty units or
imprisonment for three months for contravention of an order
under this section is provided to ensure parity with penalties
under section 126 of the Magistrates' Court Act 1989 for
similar offences
Clause 52 provides for alternative arrangements for conducting
proceedings under the Bill. These alternatives include the use
of closed circuit television, permitting support persons while a
18
person gives evidence and requiring legal representatives to
remain seated.
Similar provisions exist in the Criminal Procedure Act 2009
for sexual offence and family violence offence matters.
This provision may be particularly relevant for matters that
relate to pursuit-type stalking, as seeing the victim in court may
encourage, exacerbate or reward stalking behaviour.
Division 5--Assessment reports in proceedings in the Children's
Court
Division 5 of Part 3 of the Bill outlines the use of assessment reports in
proceedings relating to personal safety intervention orders in the Children's
Court. The purpose of this is to provide a scheme for clinical assessment
reports to be obtained to assist the court in determining the conditions of an
order.
They are adapted from similar reporting provisions in the Children, Youth
and Families Act 2005 and mirror changes to the Family Violence
Protection Act 2008 contained in the Justice Legislation Amendment
(Victims of Crime Assistance and Other Matters) Act 2010.
Clause 53 gives the Children's Court the power to order an assessment for
a respondent or affected person. Clause 53(2) provides that the
Children's Court cannot order an assessment report unless the
person who is the subject of the order consents and, if the
person is a child, they are legally represented.
Clause 54 states that if the Children's Court orders the Secretary to submit
an assessment report, the registrar of the Children's Court where
the order was made must, within one day of making the order,
orally notify the Secretary of the order and forward a copy of
the order.
Clause 55 provides that the author of an assessment report must inform the
person being interviewed at the beginning of the interview that
any information provided may be included in the report.
Clause 56 provides for when the person who is the subject of the report
disputes a matter in an assessment report. Subclause (1)
provides that the Children's Court cannot take a disputed matter
into consideration when determining whether to make an order
unless the Court is satisfied on the balance of probabilities that
the matter is true. Clause 56(2) states that if an assessment
report or part of a report is disputed, and the author of the report
has been required to attend the proceeding but does not attend,
the Children's Court cannot take the report or the part in dispute
19
into consideration unless the person subject to the report
consents to the report or part in dispute being admitted as
evidence.
Clause 57 provides that an assessment report must include matters the
Children's Court considers relevant to the proceedings such as
psychological or psychiatric assessments of the person who is
the subject of the report and any other matters directed by the
Children's Court.
Clause 58 states that if the Court orders the Secretary to submit an
assessment report this must be done within 21 days and not less
than 3 working days before the hearing. If the Secretary is of
the opinion that information in the report will or may be
prejudicial to the physical or mental health of the subject of the
report, the Secretary may forward a statement to that effect to
the Court with the report.
Clause 59 states that the author of an assessment report may be required to
give evidence at the hearing of the proceeding if a notice is
provided by the person who is the subject of the report, a party
to the proceeding with leave of the court, or the court itself.
Clause 59(2) provides that the notice must be in writing and
comply with filing requirements. Clause 59(3) states that the
registrar must immediately notify the author of the report of the
requirement to attend court. Clause 59(4) provides that a report
writer is in contempt of court if he or she is required to attend
court and fails to do so without sufficient excuse.
Clause 59(5) provides that a report writer who is required to
attend a hearing of a proceeding must, if required, be called as a
witness. If the report writer is called as a witness, he or she may
be cross-examined on the contents of the report by any party.
Clause 60 provides for the confidentiality of assessment reports.
Clause 60(1) provides that the court may impose conditions
regarding who can access the report. Clause 60(2) creates an
offence, providing that subject to any contrary direction of the
court, a person who prepares, receives or has access to a report
or a part of the report must not disclose information in that
report to a person who is not entitled to have access to or
receive the report, without the consent of the person who is the
subject of the report. There is a penalty of 10 penalty units for
committing the offence. Clause 60(3) provides that a reference
in this section to a report includes a reference to a copy of a
report. The provision ensures the confidentiality of personal
information.
20
Division 6--Making final orders
Division 6 of Part 3 of the Bill outlines the circumstances in which the court
can make a final order.
Clause 61 provides the court with a power to make a final order. A final
order may be made where the court is satisfied, on the balance
of probabilities, that--
· the respondent has committed prohibited behaviour
against the affected person, and is likely to continue to
do so or do so again, and the respondent's prohibited
behaviour would cause a reasonable person to fear for
his or her own safety; or
· the respondent has stalked the affected person, and is
likely to continue to do so or to do so again; and
· the respondent and the affected person are not family
members; and
· it is appropriate in all the circumstances of the case to
make a final order.
The court must find that the respondent is likely to stalk or
commit prohibited behaviour against the affected person again
as the purpose of the intervention order system is to protect
affected persons from future prohibited behaviour and stalking.
The making of a final order is precluded where the respondent
and the affected person are family members. This is because
the intention is that if parties are in a "family" or "family-like"
relationship, the matter must be heard under the Family
Violence Protection Act 2008, while if they are not in a
"family" or "family-like" relationship, the matter must be heard
under the Personal Safety Intervention Orders Bill 2010.
The court must be satisfied that it is appropriate to make a final
personal safety intervention order in all the circumstances of the
case. This provision has the effect that, despite the other limbs
of the tests being made out, the court has a discretion not to
make a final order if it is satisfied that an order would be
inappropriate in all the circumstances of the case.
For example, if a person applies for a personal safety
intervention order and the matter is assessed as appropriate for
mediation but the person does not attend mediation without a
good reason, the court may decide that it is not appropriate to
make an interim order in all the circumstances of the case.
21
Clause 61(2) outlines, without limiting clause 61(1)(c), that in
deciding whether it is appropriate to make a final order, the
court may consider--
· if the respondent is a child, the respondent's ability to
understand the nature and effect of the order and
comply with its conditions, taking into account his or
her age and maturity;
· if the court is satisfied that the respondent has a
cognitive impairment, the respondent's ability to
understand the nature and effect of the order and
comply with its conditions, taking into account his or
her cognitive impairment.
This is because an order will be unworkable if the respondent
does not have the ability to understand and comply with their
obligations under a personal safety intervention order due to
their age or impairment.
Clause 61(3)(a) provides that if the court finds that the
respondent has stalked or committed prohibited behaviour
against more than one affected person, a final order may be
made to protect each affected person.
Clause 61(3)(b) provides that if all the parties consent or do not
oppose the making of a personal safety intervention order, the
court has power to make an order for more than one affected
person. Clause 64 further describes how consent orders are
made.
Clause 61(4) provides that the court must not make a final order
if it is satisfied, on the balance of probabilities, that the
respondent engaged in the prohibited behaviour or stalking
without malice--
· in the normal course of a lawful business, trade,
profession or enterprise (including publishers of news or
current affairs material); or
· for the purpose of an industrial dispute; or
· for the purpose of engaging in political activities or
discussion or communicating with respect to public
affairs.
Clause 61(5) provides that behaviour that occurs interstate, or
occurs when the affected person is interstate, may be relevant
for the purposes of personal safety intervention order
proceedings. This is so a person is not denied the protection of
22
a personal safety intervention order where a connection to
Victoria exists.
Clause 62 prohibits the making of a final personal safety intervention
order where there is an existing family violence intervention
order for which the affected person is a protected person and
the respondent is a respondent, or where the respondent is a
protected person and the affected person is a respondent.
However, a court may make a final personal safety intervention
order where there is an existing family violence intervention
order if the court first revokes the family violence intervention
order. For example, if there is an existing interim family
violence intervention order protecting Mr X from Ms Y, and
Ms Y has made an application for a personal safety intervention
order against Mr X, the court can make a final personal safety
intervention order to protect Ms Y from Mr X if it first revokes
the interim family violence intervention order. Clause 133
provides that applications for personal safety intervention
orders may be heard together with applications for family
violence intervention orders if it is appropriate to do so.
Clause 63 outlines the power of the court to make a final order if there is a
police application that the affected person has not consented to.
In this case, the court may make a final order; however, the
court is restricted as to the conditions it may impose on such an
order.
Clause 63(2) provides that the final order may only include
conditions that prohibit the respondent from committing
prohibited behaviour or stalking as defined by this Bill.
This may include prohibiting the respondent from assaulting,
sexually assaulting, harassing or threatening the protected
person, damaging or interfering with the protected person's
property or stalking the protected person. The court may also
prohibit the respondent from causing another person to engage
in conduct prohibited by the order and may revoke cancel or
suspend a firearms authority or weapons approval.
Clause 63(3) provides that a final order can be made without
the affected person's consent on a police application with any
conditions if the affected person is a child, if the affected person
has a guardian and the guardian has consented to the
application, or if the affected person is cognitively impaired.
This subclause is to ensure that police have the power to take
protective action for those who may not have the capacity to act
in their own interests.
23
Clause 64 outlines the circumstances in which a court can make a final
order by consent.
Clause 64(1) provides that the court can make a final order
without being satisfied that there are grounds for making the
order if the parties have consented or do not oppose the making
of the final order. With regard to a proceeding for a variation,
revocation or extension of an order, the court may make the
variation, revocation or extension without being satisfied as to
anything referred to in clauses 80 or 83. The respondent does
not need to admit any of the allegations made in the application
in order to consent or not oppose the order being made. This is
to ensure that where the respondent is willing to have their
behaviour constrained by the conditions of an order, the
affected person does not need to go through a full court hearing.
Clause 64(2)(a) provides an exception to clause 64(1) where the
respondent is a child. In this case, the court must be satisfied
that there are grounds to make the order. This clause has been
included to provide additional protection to child respondents.
Child respondents may consent or not oppose the making of an
order without fully appreciating the consequences. Therefore,
in these cases, the court must be satisfied that the respondent
child has committed prohibited behaviour or stalking before
making a final order against the child. The length of any order
made against a child respondent is limited, by clause 78, to
12 months unless there are exceptional circumstances.
Clause 64(2)(b) provides that the court can refuse to make a
final order to which the parties have consented or not opposed
if the court believes it is not appropriate to make the order.
This might occur, for example, where a person with a cognitive
impairment has consented to the making of an order but the
court believes that the respondent does not understand the
obligations imposed upon them by the order and cannot comply
with the conditions due to the respondent's cognitive
impairment.
Clause 64(3) provides that where an affected person's parent or
guardian has consented to the making of an application, that
parent or guardian is to be treated as a party for the purposes of
consenting to or not opposing the making of an order.
Clause 64(4) provides that despite clause 64(1), the court may
conduct a hearing if it believes it is in the interests of justice to
do so. An example may be where the court believes that the
respondent does not fully understand the implications of not
opposing the making of an order. This may include the
situation of a cross-application, where each party has applied
24
for an order against the other. In such a situation, a victim of
prohibited behaviour or stalking may consent to an order being
made against them in order to receive the protection of an order
made against the perpetrator. This may be a situation where the
court believes it is in the interests of justice to conduct a
hearing. Similarly, if the court suspects that one party has a
cognitive impairment and it may not be appropriate to make an
order against that person, the court may conduct a hearing to
attempt to determine whether this is the case.
Clause 64(5) provides that a court may refuse to make a final
order that the respondent has consented to or has not opposed
where the court believes it may pose a risk to the safety of one
of the parties or a child of either of the parties.
Clause 64(6) provides that clause 82 still applies in relation to
any other person protected by the personal safety intervention
order whether or not the court decides to make an order
varying, revoking or extending a final order under clause 64(1).
This means that the court must still consider the needs of any
person other than the applicant who is protected by the order,
and that the court may refuse an application or make a different
variation to the variation sought if it is necessary to ensure the
safety of another person protected by the order. This is to
ensure that another person protected by the order does not have
their protection removed due to an application for a variation or
revocation made by another person.
Division 7--Conditions on intervention orders
Division 7 of Part 3 of the Bill outlines the types of conditions that may be
included in an order to restrict the respondent's behaviour. However, an
order may include any condition the court thinks is necessary or desirable in
the circumstances and the court is not limited by the list of types of
conditions set out in clause 67.
Subdivision 1--General
Subdivision 1 of Division 7 of Part 3 of the Bill includes general provisions
around the types of conditions that may be included in a personal safety
intervention order.
Clause 65 provides a definition of residence for the purposes of this
division.
Clause 66 provides that when a magistrate is deciding which conditions to
include in a personal safety intervention order, he or she must
consider including conditions in the order that will not prevent
mediation occurring.
25
This is so that if the court believes a matter may be appropriate
for both mediation (subject to assessment by a dispute
assessment officer) and a personal safety intervention order,
they may allow for this in the conditions of the order.
Alternatively, the court may consider mediation inappropriate,
for example if pursuit-type stalking is involved, and may
include conditions in the order that prevent mediation
occurring.
Clause 67 outlines the types of conditions that may be included in
personal safety intervention order.
Clause 67(1) provides that the court may include any condition
that appears necessary or desirable in the circumstances of the
case. This means that the court is not constrained by the
examples of conditions listed in clause 67(2).
Clause 67(2) includes a list of conditions that may be included
in a personal safety intervention order. These conditions have
been specifically outlined because they are those most
commonly included in intervention orders. Clauses 67(2)(a)
and (b) reflect the definitions of prohibited behaviour and
stalking in the Bill. The terms of the conditions are a matter for
the court to determine in each case.
Clause 67(3) provides that the court may only make a condition
excluding a child respondent from the protected person's
residence in accordance with clause 71, which outlines
considerations where the court is considering excluding a child
from the residence.
Clause 67(4) provides that where the court is making a final
personal safety intervention order against a respondent who is a
student, Subdivision 3 of Division 7 of Part 3 of this Bill will
apply.
Clause 68 provides that if the court intends to make a personal safety
intervention order, the court must enquire as to whether the
respondent holds a firearms authority, is a person who enjoys a
weapons exemption or holds a weapons approval.
Clause 69 provides for the court to suspend or cancel a respondent's
firearms authority, weapons approval or weapons exemption.
Clause 69(a) provides that if the court makes an interim
personal safety intervention order, it can suspend a respondent's
firearms authority or weapons approval or suspend the
application of a general weapons exemption to the respondent.
26
Clause 69(b) provides that if the court makes a final personal
safety intervention order, it may include conditions that cancel
the respondent's firearm authority, revoke the respondent's
weapons approval or revoke the application of a general
weapons exemption to the respondent.
Clause 70 outlines how the court may obtain a new address for the service
of documents on the respondent if the respondent is excluded
from the residence. This is to ensure that police officers have
an improved prospect of locating the respondent to serve any
future court documents. For example, if the protected person
applies to have a final order extended or varied, this application
will need to be served on the respondent before the application
can be heard.
Clause 70(1) provides that where an exclusion condition has
been included, the court must ask the respondent for an address
for service and inform the respondent that if police cannot
locate the respondent, they may apply for information from
public sector organisations, in accordance with clause 181.
Clause 70(2) provides that a respondent may provide an email
address for service. However, an email address will not be able
to be used for documents requiring personal service.
Clause 70(3) provides that the respondent is not obliged to
comply with the request to provide an address. The intention is
to encourage the respondent to give an address, not to mandate
a requirement to give an address for service.
Clause 70(4) provides that an address provided by the
respondent is not valid for service if another person living at the
address advises the court that they do not consent to their
address being used for service. This is to protect the privacy of
third parties who do not want their address being used as the
address at which to serve any documents upon the respondent.
Subdivision 2--Conditions excluding child respondent from
residence
Subdivision 2 of Division 7 of Part 3 of the Bill sets out when the court may
make a condition in a personal safety intervention order excluding a child
respondent from their residence.
Clause 71 outlines considerations where the court is considering excluding
a child from the residence.
Clause 71(1) states that this clause applies where a personal
safety intervention order is being made against a child
respondent.
27
Clause 71(2) outlines what the court must consider
when deciding whether to exclude the child respondent.
These factors have been included to emphasise the importance
of those who have experienced prohibited behaviour or stalking
being able to remain in the home, while also ensuring that the
competing interests of the child respondent in remaining in the
residence are taken into account by the court.
Clause 71(3) provides that where a court is considering
excluding a child respondent from the residence, it should do so
only where it is satisfied that the child will have appropriate
alternative accommodation and appropriate care and
supervision. This is to ensure that a child respondent will be
appropriately cared for if excluded from their current residence
by the personal safety intervention order.
Clause 71(4) provides that where the respondent is an
Aboriginal or Torres Strait Islander child, the court must
consider under subclause (3) how the child can maintain his or
her culture and identity. This is based on the Aboriginal child
placement principle from section 13 of the Children, Youth
and Families Act 2005.
Clause 71(5) provides that if a court makes an exclusion
condition in a personal safety intervention order against a child
respondent, then the court must notify the Secretary to the
Department of Human Services (DHS) that the order has been
made. This will allow DHS to decide whether the child
requires any further assistance or whether protective action
under the Children, Youth and Families Act 2005 is required.
Clause 72 provides that if the court requires information, the court may
ask the Secretary to DHS to provide a report about the care,
supervision and accommodation options available to the child
if the child was excluded from their home.
Clause 72(2) provides that the Secretary to DHS must give the
report within a prescribed time. If the child is under the age of
17 years, the request for a report by the court will be treated by
DHS as though it was a report about a significant concern for
the wellbeing of a child under section 28 of the Children,
Youth and Families Act 2005.
Subdivision 3--Conditions preventing a respondent from
attending school
Subdivision 3 of Division 7 of Part 3 the Bill sets out when the court may
make a condition in a personal safety intervention order that would have the
effect of limiting access to school for a respondent who is a school student.
28
Clause 73 provides a definition of training for the purposes of this
subdivision. This definition is modelled on the definition of
training in section 1.1.3(1) of the Education and Training
Reform Act 2006, however it is restricted to training that is
undertaken within a school.
Clause 74 requires the court to consider whether certain conditions of a
personal safety intervention order may prevent a respondent
who is a student or wishes to be a student from attending the
school at which he or she is a student or wishes to be a student.
This is to prevent the court from unwittingly preventing a
school student or prospective student from attending school by
including a condition in a personal safety intervention order that
would be unworkable in the respondent's particular school
environment. This provision does not prevent the court from
including such a condition in a personal safety intervention
order if the court believes that it is necessary.
Clause 74(1) lists the particular conditions that the court must
consider.
Clause 74(2) outlines who may give evidence, with leave of the
court, as to whether a condition in subclause (1) would prevent
the respondent attending the school. This includes a school
principal, a teacher or a representative of the school or a
representative from the Department of Education and Early
Childhood Development.
Clause 75 provides that when deciding whether to include a condition
referred to in clause 74(1) in a personal safety intervention
order, the court may request a report from the Department of
Education and Early Childhood Development containing
options for the alternative education or training for the
respondent, or any information that may assist the court in its
decision as to whether to impose a particular condition. It is
intended that this will allow the court to fully inform itself
about whether a condition that may have the effect of excluding
a student or prospective student from school.
Clause 75(2) outlines the type of information that may be
included in a report made under clause 75(1). Essentially, the
Department of Education and Early Childhood Development
may provide any information that it possesses or that is
possessed by a Government school. The Department will not
be required to consult with non-government schools for the
purposes of preparing its report. However, a representative of a
non-government school may give evidence with leave of the
court under clause 74(2).
29
Clause 75(3) sets out the time within which a report under
clause 75(1) must be given to the court.
Clause 75(4) makes clear that nothing in clause 75 allows a
report provided under clause 75(1) to contain information about
the appropriateness of making the personal safety intervention
order. The purpose of the report is to provide information to
the court about the impact that a proposed condition may have
on the respondent's schooling, rather than providing the opinion
of the Department as to whether a personal safety intervention
order should be made.
Division 8--Explanation of final order
Division 8 of Part 3 of the Bill outlines the court's obligation to explain a
final personal safety intervention order that it makes.
Clause 76 outlines the court's obligation to explain a final order that it
makes.
Clause 76(1) outlines matters that must be explained to the
protected person and the respondent if either is before the court.
Clause 76(2) provides that the explanation under clause 76(1)
must be a clear oral explanation.
Clause 76(3) provides that the court must give the respondent
and the protected person a written notice containing the
information in clause 76(1) and the prescribed information.
This is to ensure that those affected by the order receive clear
written information about the nature and consequences of the
order that has been made.
Clause 76(4) provides that, along with the written notice, the
court may provide written information about services that may
be available to the protected person or the respondent, such as
counselling services, drug and alcohol services, disability
services, financial counselling services, mental health services
and advocacy services. This is so that if there is an underlying
issue causing the respondent's prohibited behaviour or stalking,
the respondent may be notified of appropriate services known
to the registrar that may be able to assist the respondent to
address that behaviour.
Clause 76(5) provides that a failure to give an explanation or a
written notice in accordance with this clause does not affect the
validity of the order. This is to ensure that a procedural failure
does not undermine the protective intent of the order.
30
Division 9--Duration of final order
Division 9 of Part 3 of the Bill includes factors for the court to consider when
deciding for how long a final order should last.
Clause 77 provides that the court may specify a period that a final order
will remain in force.
Clause 77(2) provides that the court must take into account the
views of the protected person and the applicant in determining
the length of the order.
Clause 77(3) also requires the court to have regard to any
matters raised by the respondent that are relevant to the duration
of the order.
Clause 78 states that where the respondent is a child, a final order should
not last for longer than 12 months unless there are exceptional
circumstances. This is to ensure that orders made against
young people are limited in duration.
Clause 79 provides that a final order remains in force for the period
specified in the order, or if no period is specified, until it is
revoked by the court or set aside on appeal. This means that a
final order without a specified duration can operate indefinitely.
Division 10--Variation, revocation and extension of intervention
orders
Division 10 of Part 3 of the Bill outlines how an order may be varied,
revoked or extended. It includes who may make an application for a change
to an order and what the court must consider when hearing such an
application.
Subdivision 1--Variation and revocation of intervention orders
Subdivision 1 of Division 10 of Part 3 of the Bill includes provisions around
variation and revocation of personal safety intervention orders.
Clause 80 provides the court with a power to vary or revoke a personal
safety intervention order.
Clause 80(1) provides that a court may vary or revoke an order
on an application made under this Division.
Clause 80(2) outlines factors for the court to consider when
deciding whether to vary or revoke an order. These factors are
intended to ensure that the safety of the protected person is
adequately considered before a change is made to the order.
31
Clause 80(3) provides that the court may vary an order rather
than revoke it on an application for an order to be revoked.
For example, a court may decide to remove an exclusion
condition from the order rather than revoke all conditions in
order to maintain some level of protection for the protected
person.
Clause 81 provides that a court may make an interim variation. This will
enable a court to make urgent variations to a personal safety
intervention order before the respondent has been served with
the application for variation. This may be particularly useful if
there is a personal safety intervention order in place without an
exclusion condition and a violent incident occurs after-hours,
necessitating the exclusion of the respondent. In these cases,
the application for variation is treated in the same procedural
manner as an application for an interim personal safety
intervention order. Clause 81(2) provides that Division 3
applies to the making of an interim order varying a personal
safety intervention order as if it were the making of an interim
order under that Division.
Clause 82 provides additional protection where the court is considering
varying or revoking an order.
Clause 82(1) provides that the court must consider the needs of
any other person protected by the order, aside from the
applicant for the variation or revocation.
Clause 82(2) provides that the court may refuse an application
or make a different variation to the variation sought if it is
necessary to ensure the safety of another person protected by
the order. This is to ensure that another person protected by the
order does not have their protection removed due to an
application for a variation or revocation made by another
person.
Subdivision 2--Extension of final order
Subdivision 2 of Division 10 of Part 3 of the Bill includes provisions around
extension of personal safety intervention orders.
Clause 83 provides the court with a power to extend a final order.
Clause 83(1) provides that a court may extend an order on an
application made by a person specified in clause 85.
Clause 83(2) provides the grounds that must be satisfied in
order for a court to extend an order. These grounds are
provided to ensure that the protection of an order is still
necessary before an extension is granted.
32
Clause 83(3) clarifies that it is not necessary to show that the
respondent has committed prohibited behaviour or stalking
against the protected person while the order was in force to
obtain an extension.
This is to ensure that an extension of an order is not refused
merely because a respondent has complied with the conditions
of the order.
Clause 84 provides that an order can be extended in the interim, before a
respondent has been informed of the application.
Clause 84(1) provides that if a person applies for an extension
of a final order before the order expires and the respondent has
not been served with the application, the court may make an
interim order in the absence of the respondent that extends the
final order (called an interim extension order).
Clause 84(2) provides that an interim extension order expires
28 days after it is made unless the respondent is earlier served
with the notice of the application and a copy of the interim
extension order.
Clause 84(3) states that the court may make more than one
interim extension order if it has not been possible to serve the
respondent with the notice of the application and a copy of the
interim extension order.
Clause 84(4) provides that if a respondent is served with notice
of the application and a copy of the interim extension order
within 28 days of making the interim extension order, the order
remains in force until one of the events in section 84(4)(a) to (e)
occur.
This clause ensures that an interim extension order expires at an
appropriate time with respect to the protected person's safety:
when the court makes a decision on the extension application or
the application is withdrawn.
Subdivision 3--Application to vary, revoke or extend intervention
order
Subdivision 3 of Division 10 of Part 3 of the Bill includes provisions around
who may make an application to vary, revoke or extend a personal safety
intervention order and how these applications are to be made.
Clause 85 sets out who may make an application to vary, revoke or extend
a personal safety intervention order. This includes all of those
who may apply for a personal safety intervention order under
clause 15, including those who were not a party to the original
33
proceedings. For example, a police officer may apply for a
variation where the original application was brought by the
protected person or another police officer.
Clause 86 outlines the circumstances where a respondent can apply for a
variation or revocation of a personal safety intervention order.
Clause 86(1) provides that the respondent may only apply
where the court has given leave.
Clause 86(2) states that the court may only grant leave if the
court is satisfied that there has been a change of circumstances
since the personal safety intervention order was made and the
change of circumstances may justify a variation or revocation
of the order. This is to ensure that a respondent cannot use the
variation and revocation proceedings to bother further the
protected person with baseless applications.
Clause 87 outlines the circumstances where a police officer can apply for
a variation or extension of an order.
Clause 87(1) provides that a police application may be made
without the consent of the protected person.
Clause 87(2) provides that if the protected person has not
consented to the application, a variation can still be made on a
police application but only to include limited conditions and
cannot remove any conditions. This is consistent with
clause 63, which provides that an order can only include limited
conditions where it is made on a police application without the
consent of the affected person.
Clause 87(3) provides that a variation to include any conditions
or remove conditions can be made on a police application
without the consent of the protected person where the person is
a child, has a cognitive impairment or has a guardian and the
guardian has consented to the application. This clause is to
ensure that police have the power to take protective action for
those who may not have the capacity to act in their own
interests.
Clause 87(4) clarifies that a police officer does not have an
obligation to bring an application for variation or extension if
requested by a person protected by an order. This is to ensure
that police officers do not become de facto legal representation
for all variation and extension hearings.
Clause 88 provides that certain applications must be made with written
consent of the protected person, a child's parent or the person's
guardian. This is to ensure that applications to vary, revoke or
34
extend orders are not able to proceed if the protected person or
persons with the responsibility to protect a child or vulnerable
party do not consent (unless it is the police officer's
application).
Clause 89 provides that where a protected person objects to an application
brought on their behalf under this Division, the views of the
protected person must be heard separately from the views of the
applicant. This is similar to the effect of clause 46, to ensure
that persons can inform the court where they object to
protective measures being taken on their behalf by another
person.
Subdivision 4--Service of applications for variations, revocations
or extensions of orders
Subdivision 4 of Division 10 of Part 3 of the Bill outlines who must be
served with an application made under this Division, to ensure that all
relevant persons are aware of the application.
Clause 90 outlines who must be served with an application made under
this Division, to ensure that all relevant persons are aware of the
application.
Division 11--Appeals and rehearings
Division 11 of Part 3 of the Bill outlines the processes for appeals and
rehearings.
Subdivision 1--Appeals to County Court and Supreme Court
Subdivision 1 of Division 11 of Part 3 of the Bill includes provisions around
appeals to the County Court and the Supreme Court.
Clause 91 provides who may appeal against the making of a personal safety
intervention order or a refusal to make such an order.
Clause 91(2) provides limitations on who may appeal--
· if the protected person did not apply for the original
personal safety intervention order and the applicant goes
on to appeal the decision, the protected person or those
with responsibility for the protected person are required
to consent to the appeal;
· that a person appealing against a decision declaring
them to be a vexatious litigant must appeal under
clause 167, not this provision;
35
· that a vexatious litigant must be granted leave under
clause 168 before they can appeal a decision on an
application under this Bill.
Clause 92 provides that an appeal under this Division must be made to the
County Court, unless the appeal relates to a decision by the
President of the Children's Court, in which case the appeal must
be made to the Trial Division of the Supreme Court.
Clause 93 provides for what a notice of appeal must include, where and
when it must be filed and on whom it must be served.
Clause 94 provides that an appeal against a decision does not operate as a
stay of the Magistrates' Court or Children's Court decision.
Clause 94(2) allows a court to make an order staying the
original decision pending the determination of the appeal.
Clause 94(3) provides that the court may impose bail conditions
on an appellant in order to ensure the safety of a protected
person or to ensure a party's attendance at the appeal.
Clause 95 provides that if the applicant for a personal safety intervention
order was not the protected person and that applicant is
appealing a decision, the appeal cannot proceed unless the
protected person or those with responsibility for the protected
person (such as a parent or guardian) consents to the appeal.
This is to ensure that a protected person or a person with the
responsibility for a protected person can decide what matters
are appealed on their behalf or on behalf of those for whom
they have responsibility.
Clause 95(2) clarifies that nothing in this clause prevents appeal
on the basis of a jurisdictional error.
Clause 96 provides that an appeal against a decision of the original court
is by way of a rehearing and sets out the powers of an appeal
court in relation to the original decision.
Clause 96(2)(d) provides that the court may make a
determination under section 176E(2) of the Family Violence
Protection Act 2008 and make any order and exercise any
power that the Magistrates' or Children's Courts could have
made or exercised under Part 9A of that Act. This is so that the
appeal court may make a determination that the parties are
family members, and keep hearing the matter as an application
for a family violence intervention order.
Clause 96(2)(e) provides that the appeal court can give a
mediation direction.
36
Clause 97 provides that there is no appeal against a decision of the County
Court or Supreme Court determining an appeal from a
Magistrates' Court or Children's Court, with the exception that
nothing prevents appeal from the County Court or Supreme
Court on the basis of jurisdictional error.
Clause 98 provides that if an appeal is being heard then the provisions of
the Bill, Magistrates' Court Act 1989 or Children, Youth
and Families Act 2005 applies in the appeal hearing. As an
appeal is by way of rehearing (see clause 96), this is particularly
relevant to how proceedings may be conducted, how evidence
may be given and prohibitions on publication of identifying
information.
Subdivision 2--Rehearings
Subdivision 2 of Division 11 of Part 3 of the Bill deals with rehearings.
Clause 99 provides for a person to seek a rehearing of an application if a
final order or an order declaring the person to be a vexatious
litigant has been made and that person was not served with the
application, nor made aware of it under an order for substituted
service.
A person may also seek a rehearing where there are exceptional
circumstances and a rehearing would be fair and just in all the
circumstances. For example, this provision might address a
scenario where a non-English speaking person attended the
court venue on the required day but was inadvertently directed
to the wrong court room and missed the hearing.
An application for a rehearing does not operate as a stay on the
final order or order declaring a person to be vexatious.
Clause 99(4) provides that if an applicant fails to attend the
time fixed for the rehearing and the application is struck out, the
applicant can only reapply with the leave of the court.
Division 12--Contravention of intervention order
Division 12 of Part 3 of the Bill provides that contravening a condition of a
personal safety intervention order is a criminal offence.
Clause 100 states that contravening an order is a criminal offence. This is
to ensure that the conditions of the order can be enforced.
Clause 100(1) provides that a person must have been served
with a copy of the order or had an explanation of the order
given in accordance with clause 40 or 76.
37
Clause 100(2) provides that contravening the order is an
offence, punishable by level 7 imprisonment (2 years
maximum) or level 7 fine (240 penalty units maximum) or both.
Clause 101 provides that a police officer may arrest and detain a person
without a warrant if the officer believes on reasonable grounds
that the person has contravened a personal safety intervention
order. This power of arrest and detention without a warrant has
been provided to provide further protection to the person
protected by the order. The Bail Act 1977 will apply in these
circumstances.
PART 4--JURISDICTION OF COURTS AND PROCEEDINGS
Part 4 of the Bill outlines the jurisdiction of the courts in relation to personal
safety intervention orders and includes provisions around proceedings for
personal safety intervention orders.
Division 1--Jurisdiction of courts
Division 1 of Part 4 of the Bill outlines the jurisdiction of the courts in
relation to personal safety intervention orders, in particular the jurisdiction of
the Magistrates' Court and the Children's Court.
Clause 102 sets out definitions of Children's Court and Magistrates'
Court.
Clause 103 outlines the jurisdiction where the affected person, protected
person or respondent is a child.
Clause 103(1) provides that both the Magistrates' Court and the
Family Division of the Children's Court have jurisdiction where
this is the case.
Clause 103(2) provides that where the respondent is a child the
matter should be heard in the Children's Court if practicable.
This is to ensure that children who are respondents have access
to the additional services and supports available through the
Children's Court when an application is made against them.
Clause 104 provides the Children's Court with jurisdiction to deal with
related applications.
Clause 104(1) outlines the circumstances that this clause
applies to--where an application involves a child and there is a
related application between adults.
Clause 104(2) states that in these circumstances the Children's
Court also has jurisdiction over the related application. This is
to avoid a need for victims to attend two separate hearings to
38
obtain protection for themselves and their children--one in the
Magistrates' Court and one in the Children's Court. The effect
of this clause is that if the Children's Court has jurisdiction by
virtue of a protected person, affected person or respondent
being a child, then any related application between two adults
can be heard by the Children's Court, thereby reducing the need
for multiple court appearances and hearings.
Clause 104(3) provides definitions for this clause, including
that a related application is one made on the grounds of the
same or similar circumstances.
Clause 105 outlines how an application may be transferred between courts.
Clause 105(1) provides that the Magistrates' Court may transfer
an application under this Bill to the Children's Court if it
considers it appropriate in the circumstances.
Clause 105(2) provides that the Children's Court may transfer
an application under this Bill to the Magistrates' Court if it
considers it appropriate in the circumstances.
Clause 106 provides the Magistrates' Court and the Children's Court with a
power to vary, revoke or extend any order made under this Bill.
This is to ensure that parties do not need to return to the same
court to have any changes made to the order.
Clauses 106(2) and 106(3) provide that even if a decision has
been confirmed or varied on appeal, the Magistrates' Court or
Children's Court may vary or revoke the decision of the
superior court if a party applies for a variation or revocation,
but only if the court is satisfied there are new facts or
circumstances relevant to the order.
Division 2--Provisions about proceedings under this Act
Division 2 of Part 4 of the Bill includes provisions around proceedings for
personal safety intervention orders.
Clause 107 restricts the presence of children in proceedings under the Bill.
This is to reduce the likelihood of children being traumatised by
involvement in the court process.
Clause 107(1) outlines which children must not be present
during proceedings. This subclause makes clear that this
restriction applies to proceedings for offences under this Bill as
well as for civil proceedings.
Clause 107(2) provides that a child who is a respondent or
accused for the proceedings can be present, as well as any child
that the court allows to be present. A Court may order that a
39
child may be present if it sees fit, having regard to clause
107(3). It may be that allowing a child to be present in court
would be appropriate because participating in the proceedings
may benefit the child. This may particularly be the case in
"dispute" type matters where the court is seeking to achieve
some resolution between the parties.
Clause 107(3) outlines what the court must consider when
deciding whether to allow a child to be present. This is to
ensure that the court considers the potential harmful effect of
allowing the child to be present.
Clause 108 provides that the court can adjourn any proceeding to allow the
parties to obtain legal advice.
Clause 109 provides that where a police officer makes an application, the
officer can be represented by another police officer or another
person nominated by the Chief Commissioner of Police. This is
to ensure that a police officer who attends an incident of
prohibited behaviour or stalking does not need to be the officer
who makes the application in court. A police prosecutor will
usually make the application.
Clause 110 outlines the requirements for certifying documents under the
Bill and creates an offence of falsely certifying a document.
The maximum penalty for a contravention is 120 penalty units.
The certifying process can be used by police officers or court
registrars, for certifying service of documents and for
completing applications for personal safety intervention orders.
It is designed to be quicker and more efficient than swearing or
affirming a document, which requires the presence of two
persons.
Clause 111 outlines the costs provisions that apply under the Bill.
Clause 111(1) provides that each party must bear their own
costs.
Clause 111(2) provides that a party to vexatious litigant
proceedings under Part 10 must bear the cost of proceedings if
the person is declared a vexatious litigant, except for any costs
of the Attorney-General. This is to ensure that a person dealing
with a vexatious litigant by having the person declared
vexatious by the court is not financially disadvantaged. If the
party is not declared vexatious, then each party bears their own
costs.
40
Clause 111(3) provides exceptions to the rule that parties bear
their own costs. The court may make an order about costs if
there are exceptional circumstances or if the application was
vexatious, frivolous or made in bad faith.
Clause 111(4) states that the court may adjourn proceedings
where the person who it is considering making a costs order
against is not present in court. This is to ensure that the person
has an opportunity to be heard by the court before an order is
made given that this is usually a jurisdiction where parties bear
their own costs.
Clause 112 clarifies that a personal safety intervention order can be made
where there are also criminal proceedings for the same conduct.
This is because a personal safety intervention order is a civil
remedy to protect those experiencing prohibited behaviour or
stalking rather than a criminal sanction.
Clause 113 provides that where a personal safety intervention order is made
against an employed carer or a carer who is engaged by an
auspicing agency, the court must inform the employer or
organisation auspicing the care arrangement that the order has
been made. This is to ensure that appropriate steps can be taken
to change the care arrangements for the protected person and to
consider whether any other responses are necessary.
PART 5--ENFORCEMENT POWERS
Part 5 of the Bill outlines the enforcement powers held by police in relation
to personal safety intervention orders.
Clause 114 provides police officers with a power to enter and search
premises for a person in a number of circumstances.
This power is in addition to any powers of entry and search
under the Crimes Act 1958, any other Act or common law
search powers. This search power is included to ensure that
police officers have adequate powers to act to protect a person
who is experiencing prohibited behaviour or stalking, including
where the behaviour does not necessarily constitute a crime.
Clause 115 creates an offence for a failure to surrender firearms or weapons
when directed to do so by police. It provides that if a personal
safety intervention order has been made against a person, or if a
police officer is satisfied, on the balance of probabilities, that
there are grounds under clauses 35(1)(a) or 61(1)(a), and the
police officer is aware that the person has a firearm, a firearms
authority, ammunition or a weapon in their possession, the
police officer may direct that those items be surrendered.
41
Clause 115(2) specifies that surrender may be required
immediately or directed to occur at a specified place and time,
or within 48 hours. If the surrender is not immediate, the
direction must be in writing.
Clause 115(4) makes it an offence not to comply with such a
direction without lawful excuse. The maximum penalty for
such a contravention is 60 penalty units in the case of a firearm
and 30 penalty units in relation to any other item.
Clause 116 provides a power for police to search certain premises or
vehicles without a warrant if an officer is aware, or has
reasonable grounds to suspect, that firearms or weapons are in
the respondent's possession.
Clauses 116(1) and 116(2) provide that if--
· a personal safety intervention order has been made; or
· a police officer is satisfied on a balance of probabilities
that there are grounds under clause 35(1)(a) or 61(1)(a)
for making a personal safety intervention order; and
· the police officer is aware that a person has a firearm, a
firearms authority, ammunition or a weapon in their
possession; or
· reasonably suspects this is the case--
then the police officer may enter and search without warrant:
· any vehicle registered to the person; or
· any premises at which the person--
· resides; or
· has resided; or
· committed or allegedly committed prohibited
behaviour or stalking.
Clause 116(3) provides that reasonable force may be used by a
police officer to effect such an entry.
Clause 117 provides for circumstances where a search of third party
premises or vehicle may be required.
Clause 117(1) provides that a police officer may only apply for
such a search warrant if they intend to apply for a personal
safety intervention order against a person or if an order has
42
already been made. The police officer must also believe on
reasonable grounds that--
· the person is committing or about to commit an offence
under this Bill; or
· the person is in possession of a firearm, a firearms
authority, ammunition or a weapon at third party
premises or a vehicle located at those premises (ie. not
where the person resides or has resided and not where
the prohibited behaviour or stalking was committed or
alleged to have been committed) or where a vehicle is
located in a public place.
Clause 117(2) gives a magistrate the power to issue a search
warrant to enter the premises or vehicle and to search for and
seize evidence of the offence or a firearm, a firearms authority,
ammunition or a weapon.
Clause 117(3) sets out the matters that must be set out in the
issued warrant.
Clauses 117(4) and 117(5) provide that the procedural
requirements for search warrants required in the Magistrates'
Court Act 1989 and associated rules and regulations apply to
search warrants issued under this Bill.
Clause 118 provides the process that must be followed by the police when
executing a search warrant.
Clause 119 provides that a police officer executing a search warrant must
identify themselves and give an execution copy of the search
warrant to the occupier of the premises, or the person in charge
of the vehicle, being searched.
Clause 120 provides that if a person does not surrender a firearm, a firearms
authority, ammunition or a weapon when directed under
clause 115 or if the police officer searches without a warrant
under clause 116, a police officer must seize any firearms or
firearms authority and may seize any ammunition or weapon.
Clause 121 provides for what happens to surrendered or seized property
under Part 5.
Clause 121(1) provides that if a person's firearm, firearms
authority or ammunition is surrendered or seized under the Bill
and a final order is made, then the firearm, firearms authority or
ammunition can be returned only if the respondent has
successfully applied under section 189 of the Firearms Act
1996 to be deemed "not a prohibited person" and the firearm,
43
firearms authority or ammunition is not required as evidence for
an offence and has not been ordered to be forfeited after a
criminal proceeding. Otherwise, the firearm, firearms authority
or ammunition is to be forfeited to the Crown or disposed of in
accordance with the final order or, if the final order is silent on
the issue, in accordance with the Firearms Act 1996.
A surrendered or seized weapon is to be returned to the owner if
the person is declared not to be a prohibited person under the
Firearms Act 1996 and the weapon is not required as evidence,
but otherwise must be forfeited to the Crown or disposed of as
directed in the final order.
Clause 121(4) provides that if an item surrendered or seized
under Part 5 is ordered to be disposed of by sale, then proceeds
of the sale must be paid to the owner of the item.
Clause 122 provides for what should happen to surrendered or seized items
if no final order is made.
Under clause 122(2), if a person's firearm, weapon or other
article is surrendered or seized under Part 5, but a final order is
not made or no application is made for a personal safety
intervention order within a reasonable time and the surrendered
or seized item is not required as evidence or subject to
forfeiture, the item must be returned unless otherwise required
to be forfeited or disposed of under another Act or order.
Clause 122(3) provides that if a firearm, weapon or other article
is disposed of by sale under clause 122(2), proceeds of the sale
must be paid to the owner of the item.
PART 6--RESTRICTION ON PUBLICATION OF
PROCEEDINGS
Part 6 outlines the restrictions on publication of proceedings involving
children
Clause 123 restricts the publication of proceedings in the Magistrates' Court
in various circumstances.
This covers all proceedings but those in the Children's Court,
for which section 534 of the Children, Youth and Families
Act 2005, applies.
If a child is involved in the proceedings, either as a party, a
witness or a person the subject of an order, the clause prohibits
publication of a report about the proceedings or an order that
contains--
44
· the locality of the court or any other particulars that are
likely to lead to the identification of the particular venue
of the court; or
· any particulars likely to lead to the identification of the
child or any other person involved in the proceedings,
whether as a party, a witness or the subject of the order;
or
· a picture of or including a child concerned in the
proceeding.
The penalty for contravention of this clause is, in the case of a
body corporate, a fine 500 penalty units and, in any other case,
a fine of 100 penalty units or imprisonment for 2 years. This is
to ensure the penalties are equivalent to similar provisions in
section 534 of the Children, Youth and Families Act 2005,
which governs publication of proceedings in the Children's
Court.
Clause 124 restricts the application of clause 123. Therefore, clause 123
does not apply to--
· a person who publishes, or who effects the publishing
of, a report about the proceedings or the order if the
publication does not identify the locality of a court or
particulars likely to identify a venue of a court, or
particulars of a person; or
· the publication by the Attorney-General, under clause
171, of a copy of any order made under clauses 165
or 169.
Clause 125 sets out, for the purposes of clauses 123 and 124, a
non-exhaustive list of particulars that are likely to lead to the
identification of a person. These include--
· the person's name, title, pseudonym or alias;
· the address of any premises at which the person lives or
works, or the locality where those premises are situated;
· the address of a school attended by the person or the
locality where the school is situated;
· the physical description or the style of dress of the
person;
45
· any employment or occupation engaged in, profession
practised or calling pursued by, the person or any
official or honorary position held by the person;
· the relationship of the person to identified relatives of
the person or the association of the person with
identified friends or identified business, official or
professional acquaintances of the person;
· the recreational interests or the political, philosophical
or religious beliefs or interests of the person;
· any real or personal property in which the person has an
interest or with which the person is associated.
PART 7--RELATIONSHIP WITH OTHER ACTS
Part 7 of the Bill outlines the relationship between the Bill and each of the
Magistrates' Court Act 1989, the Firearms Act 1996, the Control of
Weapons Act 1990 and the Children, Youth and Families Act 2005.
It also governs the relationship of the Bill with certain orders under the
Sentencing Act 1991 and the Corrections Act 1986.
Clause 126 provides that Part 5 of the Magistrates' Court Act 1989 and
any rules made in relation to Part 5 do not apply to proceedings
under this Bill, with the exception of sections 100(1)(d) and 109
of the Magistrates' Court Act 1989. Section 100(1)(d) states
that the court has jurisdiction to hear and determine "any cause
of action if the Court is given jurisdiction to do so by or under
any Act other than [the Magistrates' Court Act 1989]".
Section 109 provides for appeals to the Supreme Court on
questions of law.
This provision is designed to avoid confusion about whether proceedings
under the Bill are civil proceedings and therefore subject to the legislation
and rules which relate to civil proceedings in the Magistrates' Court Act
1989. The Bill and any rules and regulations made under that Bill will
govern proceedings under the Bill.
Clause 127 provides that if a court suspends, revokes or cancels a firearms
authority, a weapons approval or a weapons exemption as a
condition of a personal safety intervention order then, whilst the
respondent may appeal the terms of the order under this Bill,
there can be no appeal under the Firearms Act 1996 or the
Control of Weapons Act 1990 against this decision and no
application under section 189 of the Firearms Act 1996 in
respect of the respondent's "prohibited person" status under the
Firearms Act 1996.
46
Clause 128 clarifies that when the Children's Court exercises jurisdiction
and makes decisions under the Bill, it is not required as a matter
of law to have regard to the principles set out Part 1.2 of
Chapter 1 of the Children, Youth and Families Act 2005.
Clause 129 provides that a personal safety intervention order applies
despite any child protection order under the Children, Youth
and Families Act 2005. This ensures that there is no confusion
about what court order prevails in any situation.
Clause 129(2), however, provides that if the Children's Court is
hearing a child protection matter under the Children, Youth
and Families Act 2005 and the child involved is a protected
person under personal safety intervention order, it may vary or
revoke the personal safety intervention order to the extent it is
inconsistent with a child protection order that it wishes to make
under the Children, Youth and Families Act 2005.
Clause 129(3) provides that if the Children's Court proposes to
make a variation or revocation under clause 129(2), then this
should be on an interim basis until all the parties who would be
affected by such a variation or revocation can be given notice
and be heard.
Clause 130 provides that if a personal safety intervention order is made
that is or may be inconsistent with a child protection order, the
registrar for the court should notify the Secretary to the
Department of Human Services. This will enable the Secretary
to the Department of Human Services to consider whether a
new application should be made to the Children's Court under
the Children, Youth and Families Act 2005. If such an
application is made, the Children's Court under clause 129 can
vary or revoke the personal safety intervention order to the
extent of the inconsistency.
Clause 131 provides that where a respondent is subject to a home detention
order under the Sentencing Act 1991 or a home detention order
under the Corrections Act 1986 and the court makes a personal
safety intervention order that is or may be inconsistent with the
home detention order, the appropriate registrar must give the
Secretary (as defined in the Bill) a copy of any personal safety
intervention order and a written notification that the order may
be inconsistent with a home detention order under the
Sentencing Act 1991 or a home detention order under the
Corrections Act 1986.
47
PART 8--RELATIONSHIP WITH THE FAMILY VIOLENCE
PROTECTION ACT 2008
Part 8 of the Bill sets out the relationship between the Bill and the Family
Violence Protection Act 2008.
Division 1--General
Clause 132 contains definitions relevant to the operation of this Part drawn
from the Family Violence Protection Act 2008.
Clause 133 allows any number of applications for personal safety
intervention orders to be heard together with any number of
applications for family violence intervention orders if the court
considers them sufficiently related and it is appropriate that
they are heard together.
This is designed to give the court flexibility to hear related
applications together so that the court may make appropriate
orders in the circumstances. This may occur, for example,
where there is a dispute or inappropriate behaviour involving
persons who are related to each other and persons who are not
related, as may occur in some communities. If there are cross
applications in different intervention order systems, or
confusion over whether parties are family members and which
system they should have applied under, the court can hear all
matters together and make decisions accordingly.
A decision to hear applications together can be made on the
application of applicants or respondents or if the court considers
it in the interests of justice to do so.
Clause 134 provides that a family violence intervention order will prevail to
the extent of any inconsistency with a personal safety
intervention order.
Division 2--Certain applications under Family Violence
Protection Act 2008 to be heard under this Act where parties are
not family members
Division 2 of Part 8 of the Bill governs the interaction between the Bill and
the Family Violence Protection Act 2008. The Bill provides that persons
who are family members, as defined in the Family Violence Protection Act
2008, cannot have a final contested personal safety intervention order made
to protect them. Similarly, persons who are not family members cannot have
a final contested family violence intervention order made to protect them.
48
This Part sets out what the court may do if a person who is not in a family
relationship with the respondent has applied for a family violence
intervention order under the Family Violence Protection Act 2008.
New Part 9A of the Family Violence Protection Act 2008 sets out what will
happen if a person in a family relationship with the respondent applies for a
personal safety intervention order under the Bill.
Clause 135 limits the application of this Division.
Clause 136 sets out what the court may do if it is satisfied that an affected
family member and a respondent to family violence
intervention order proceedings are not, in fact, family members,
or where the parties consent that they are not family members.
The court may strike out the application and send the parties
back to the registry to make a new application under the
personal safety intervention orders system.
Or the court may make a determination under clause 136(2)(b)
to continue to hear the proceedings as if the application had
been made under the personal safety intervention order system.
This may be preferable as it means the matter can be heard in
the same sitting.
The court can make more than one determination to continue
hearing the application as an application for a personal safety
intervention order, during the proceeding. This may occur
where the hearing is for multiple applications or where, at a
subsequent hearing, the court is given more information about
the relationship between the parties.
Clause 137 provides that if the County Court or Supreme Court has made a
determination under clause 136(2)(b), the Magistrates' Court or
Children's Court cannot reverse that determination.
Clause 138 provides that if the court is satisfied that parties to a family
violence intervention order application are not, in fact, family
members, and has made a determination under clause 136(2)(b)
to continue to hear the proceedings as if the application had
been made under the personal safety intervention order system,
an application for a family violence intervention order is taken,
as much as possible, to be an application for a personal safety
intervention order. This is because the two systems
substantially mirror each other procedurally, and it provides a
flexible system to enable matters to be heard under the correct
system.
49
Once the determination has been made, the court may make any
orders it could ordinarily make in relation to a personal safety
intervention order application, including a direction as to
mediation.
The provision states that anything that has been done under the
Family Violence Protection Act 2008 will be taken, to the
extent possible, to have been done under the Personal Safety
Intervention Orders Bill.
In particular, if a summons or warrant to arrest have been issued
under the Family Violence Protection Act 2008, they are taken
to have been issued under the Bill. Bail conditions set under
the Family Violence Protection Act 2008 continue to apply
under the Bill. A direction to surrender firearms or a weapon
given under the Family Violence Protection Act 2008 is taken
to be a direction under the Bill.
The clause also clarifies that a restriction on a child having
separate legal representation, a restriction on personal cross-
examination by a respondent of a protected witness and an
order permitting a child to be present in court will cease to
apply once a determination is made.
Clause 139 provides that where firearms, weapons or articles are seized
pursuant to a search warrant issued under section 160 of the
Family Violence Protection Act 2008, if the court is
subsequently satisfied that parties to a family violence
intervention order application are not, in fact, family members,
and a determination is made under clause 136(2)(b) to continue
to hear the proceedings as if the application had been made
under the personal safety intervention order system, those
firearms, weapons or articles are to be treated as if they were
seized under the Personal Safety Intervention Orders Bill.
Clause 140 provides for situations where a person has surrendered firearms,
a firearms authority, ammunition or a weapon under section 158
of the Family Violence Protection Act 2008, or police have
seized firearms, firearms authority, ammunition or a weapon
under section 163 of the Family Violence Protection Act
2008. If the court is subsequently satisfied that parties to a
family violence intervention order application are not, in fact,
family members, and a determination is made under clause
136(2)(b) to continue to hear the proceedings as if the
application had been made under the personal safety
intervention order system, the firearms, firearms authority or
weapon is treated as if it were surrendered or seized under the
Personal Safety Intervention Orders Bill.
50
Clause 141 provides that where the Family Violence Court Division of the
Magistrates' Court is satisfied that parties to a family violence
intervention order application are not, in fact, family members,
and a determination is made under clause 136(2)(b) to continue
to hear the proceedings as if the application had been made
under the personal safety intervention order system, the Court
Division may continue to hear the matter or transfer it to the
ordinary Magistrates' Court.
Clause 142 provides that if the court is satisfied that parties to a family
violence intervention order application are not, in fact, family
members, and a determination is made under clause 136(2)(b)
to continue to hear the proceedings as if the application had
been made under the personal safety intervention order system,
the court must revoke any existing interim family violence
intervention order.
The court may make a new interim personal safety intervention
order if there are grounds to do so. This is so that when a court
is satisfied that parties to an application are not family members
and makes a determination under clause 136(2)(b) to hear the
matter as an application for a personal safety intervention order,
the court can consider the need for the ongoing protection of a
personal safety intervention order as though the applicant had
made an application for a personal safety intervention order.
Clause 143 provides for situations where the court is satisfied that parties to
a family violence intervention order application are not, in fact,
family members, and a determination is made under clause
136(2)(b) to continue to hear the proceedings as if the
application had been made under the personal safety
intervention order system at a hearing or mention date for an
application for a variation of an interim family violence
intervention order. In such cases, the court must revoke the
interim family violence intervention order and may make an
interim personal safety intervention order if there are grounds
for making the order under clause 35, having regard to the
application for variation of the interim family violence
intervention order.
This means that, in effect, the court may make an interim
personal safety intervention order that is in line with the
variations suggested in the variation application for the family
violence intervention order if the court thinks fit.
Clause 144 provides for situations where the court is satisfied that parties to
a family violence intervention order application are not, in fact,
family members, and a determination is made under clause
136(2)(b) to continue to hear the proceedings as if the
51
application had been made under the personal safety
intervention order system at a hearing or mention date for an
application to revoke an interim family violence intervention
order. In such cases, the court must revoke the interim family
violence intervention order and may make an interim personal
safety intervention order if there are grounds for making the
order under clause 35, having regard to the application to
revoke the interim family violence intervention order.
This means that, in effect, the court may decline to make an
interim personal safety intervention order, even if there are
grounds.
Clause 145 provides for situations where the court is satisfied that parties to
a family violence intervention order application are not, in fact,
family members, and a determination is made under clause
136(2)(b) to continue to hear the proceedings as if the
application had been made under the personal safety
intervention order system during the hearing of an application
for a final family violence intervention order.
On making the determination, if there is an existing interim
family violence intervention order, the court must revoke the
interim family violence intervention order and may make an
interim personal safety intervention order if there are grounds
for making the order under clause 35. This may be useful if the
court believes that the interests of justice require the matter to
be adjourned but there are still safety concerns for the affected
person.
The court may also make any order the court could make in a
proceeding for a personal safety intervention order (including a
direction as to mediation), or continue to hear the matter as the
interests of justice require.
This clause is designed to provide enough flexibility for the
courts to make the orders that are appropriate in the
circumstances of the case.
Clause 146 provides that where an interim family violence intervention
order is revoked under any of clauses 142, 143, 144 or 145, that
revocation has effect as a revocation of an interim family
violence intervention order under the Family Violence
Protection Act 2008 and takes effect at the time of the
revocation. This means that once an interim order is revoked
under these clauses, it ends.
52
Clause 147 provides for situations where the court is satisfied that parties to
a family violence intervention order application are not, in fact,
family members, and a determination is made under
clause 136(2)(b) to continue to hear the proceedings as if the
application had been made under the personal safety
intervention order system and there has also been an application
for an associate order under the Family Violence Protection
Act 2008.
The effect of an associate order under the Family Violence
Protection Act 2008 is that the court can make a final family
violence intervention order between the parties as if they were
family members. An associate order can only be made in
situations where the applicant or the respondent to the associate
order is an associate of a party to an original family violence
intervention order. It follows that if the parties to the
application for the original order are not family members,
neither are the associates.
Clause 147 provides that in cases where the court makes a
determination that the parties to a family violence intervention
order are not family members under clause 136(2)(b), the
application for an associate order is taken, to the extent
possible, to be an application for a personal safety intervention
order.
Clause 148 provides that if the court is satisfied that parties to a family
violence intervention order application are not, in fact, family
members, and a determination is made under clause 136(2)(b)
to continue to hear the proceedings as if the application had
been made under the personal safety intervention order system,
the court must explain to the respondent and affected person the
effect of the determination and, if there is an interim order in
force, the effect of the determination on the interim order.
This is to ensure that the parties understand the orders that are
in place between them and the legal significance of the
determination.
Clause 148(2) clarifies that a failure by the court to explain a
determination under this clause does not affect the validity of
the determination.
53
PART 9--INTERSTATE AND NEW ZEALAND ORDERS
Part 9 of the Bill contains provisions relating to corresponding interstate and
New Zealand orders.
Division 1--Interstate orders
Division 1 of Part 9 of the Bill deals with corresponding interstate orders.
Clause 149 provides for registration of corresponding interstate orders in
the court. Such orders are defined in clause 4.
Clause 150 outlines the people who must be notified of the registration of
corresponding interstate orders.
Clauses 150(2), 150(3) and 150(4) provide that a registrar
may list the question of service for the court's determination.
The court may then order that a registered corresponding
interstate order be served on the respondent, but only if satisfied
that disclosing the protected person's whereabouts in Victoria
will not jeopardise the safety of a protected person or any
children of the protected person.
Clause 151 provides that once registered in Victoria, a corresponding
interstate order may be enforced as though it is a final order
made under the Bill.
Clause 152 provides that if a registered corresponding interstate order is
varied, extended or revoked in the State or Territory court in
which it was made after it is registered in Victoria, that
variation, extension or revocation has no effect in Victoria.
Clause 153 provides that the court may vary, extend or revoke a
corresponding interstate order that has been registered under
clause 149. Clause 153(2) lists who may make such an
application.
Clause 154 provides that a registered corresponding interstate order cannot
be varied, extended or revoked unless notice has been given to
the person against whom it is made and for whose protection it
is made.
Clause 155 sets out who the court must notify if it varies, extends or
revokes a registered corresponding interstate order.
54
Division 2--Corresponding New Zealand orders
Division 2 of Part 9 of the Bill deals with corresponding New Zealand orders.
Clause 156 provides that the appropriate registrar of a court may register a
corresponding New Zealand order in the court.
Clause 157 sets out whom the appropriate registrar should notify when
the corresponding New Zealand order has been registered.
Clauses 157(2) and 157(3) provide that a registrar may list the
question of service for the court's determination. The court may
then order that a registered corresponding New Zealand order
be served on the respondent, but only if satisfied that disclosing
the protected person's whereabouts in Victoria will not
jeopardise the safety of a protected person or any children of
the protected person.
Clause 158 provides that a corresponding New Zealand order registered in
Victoria has the same effect in Victoria as it does in New
Zealand and may be enforced as though it is a final order under
the Bill.
Clause 159 provides that if a corresponding New Zealand order is
registered in Victoria but is then varied, extended or revoked by
a court in New Zealand, the registered order is varied, extended
or revoked accordingly. The appropriate registrar of the
Victorian court must then notify the Chief Commissioner of
Police of the variation, extension or revocation.
PART 10--VEXATIOUS LITIGANTS
Part 10 of the Bill sets out vexatious litigant provisions for the Bill.
This Part contains a new system to allow persons to be declared vexatious
litigants. This is modelled on the system contained in the Family Violence
Protection Act 2008 but is expanded to allow consideration of vexatious
behaviour under that Act and the Bill, and including applications under prior
intervention order systems. This is because a vexatious litigant will often
make vexatious applications under more than one system. The change will
also enable the court to prevent a vexatious litigant from simply moving to
another intervention order system to continue their vexatious behaviour.
This will be of particular benefit where the vexatious litigant is using
multiple applications in different systems to pursue an individual victim,
which may occur in stalking or family violence matters.
55
Clause 160 provides that the Chief Magistrate or a Deputy Chief Magistrate
of the Magistrates' Court or the President of the Children's
Court must hear vexatious litigant matters. This is because the
Magistrates' Court and the Children's Court do not usually have
the power to declare a person a vexatious litigant.
Clause 161 sets out who may apply for a vexatious litigant order.
An application may be made by--
the Attorney-General; or, with leave of the court:
· a person against whom applications have been made
under this Bill; or
· a person against whom applications have been made
under the Stalking Intervention Orders Act 2008; or
· a person against whom complaints or applications have
been made under the Crimes (Family Violence) Act
1987 (as in force immediately before its repeal) for an
intervention order of a kind referred to in section
21A(5) of the Crimes Act 1958 (as in force
immediately before its repeal); or
· a person against whom complaints or applications have
been made for personal safety or "stalking" intervention
orders as detailed above, where additional applications
have also been made under other intervention order
systems, being the Family Violence Protection Act
2008 or the Crimes (Family Violence) Act 1987 (as in
force immediately before its repeal), for, or in relation
to, an intervention order, other than a stalking
intervention order.
In other words, for a person to protect themselves from
vexatious behaviour, they must have had at least one "stalking-
type" application made against them. This could have been
under the Personal Safety Intervention Orders Bill, the Stalking
Intervention Orders Act 2008 or a stalking order under the
Crimes (Family Violence) Act 1987.
If a person has had at least one "stalking-type" application made
against them, the court can also consider any "family violence-
type" applications made against the same person.
This is because a vexatious litigant will often make vexatious
applications under more than one system. These provisions will
enable the court to prevent a vexatious litigant from simply
moving to another intervention order system to continue their
56
vexatious behaviour. This will be of particular benefit where the
vexatious litigant is using multiple applications in different
systems to pursue an individual victim, which may occur in
stalking or family violence matters.
Clause 161(3) provides that the court must be satisfied that
there is merit in the application and that the making of the
application would not be an abuse of process before the court
grants leave. The requirement for leave is to ensure that
applications have some merit before a person is summonsed to
court for a vexatious litigant hearing.
Clause 162 provides that if the Attorney-General requests access to court
documents, so that a decision can be made about whether to
make a vexatious litigant application, the court may give a copy
of the documents requested.
Clause 163 provides that where the Attorney-General makes an application
to have a person declared a vexatious litigant, a copy of the
application must be served on the person who would be
protected by the vexatious litigant order. This is to ensure that
the person is aware of the application and may attend court for
the hearing.
Clause 164 provides that the person proposed to be declared a vexatious
litigant must have a copy of the application served on them.
This is to ensure that the person is aware of the application and
may attend court for the hearing.
Clause 165 sets out the power of the court to declare a person a vexatious
litigant.
Clause 165(1) provides that a vexatious litigant order may be
made where the court is satisfied that the person has habitually,
persistently and without any reasonable ground instituted
proceedings against the same person under the Bill, the
Stalking Intervention Orders Act 2008, the Family Violence
Protection Act 2008 and/or the Crimes (Family Violence) Act
1987.
This is the same test as for a vexatious litigant order under the
Supreme Court Act 1986. This provision is included to ensure
that the procedures under the Bill cannot be misused and to
acknowledge that it would only be appropriate to limit a
person's access to the court system if the person had
demonstrably abused court processes in the past. The inclusion
of proceedings brought under the Bill, the Stalking
Intervention Orders Act 2008, the Family Violence
Protection Act 2008 and/or the Crimes (Family Violence) Act
57
1987 is so that vexatious behaviour across the intervention
order systems, past and present, is considered.
Clause 165(2) provides that a person who is declared a
vexatious litigant cannot begin any proceedings under the Bill
or under the Family Violence Protection Act 2008 against the
person protected by the order or their children without the leave
of the court. This is to ensure that the person declared a
vexatious litigant can still use the provisions of the Bill and the
Family Violence Protection Act 2008, but must first
demonstrate legitimate grounds for doing so before the person
protected by the order is required to attend court for a hearing.
Clause 165(3) provides that a copy of the order declaring a
person to be vexatious must be served on certain people.
Clause 165(4) provides that the order must be accompanied by
the reasons that the court made the order.
Clause 166 states that when deciding whether to grant leave to allow a
vexatious litigant to apply for a personal safety intervention
order, or the variation, revocation or extension of such an order,
the court may be constituted by any Magistrate and the hearing
should occur as soon as practicable. This is to ensure that a
person declared a vexatious litigant does not experience a long
delay where there are legitimate grounds for an application
under the Bill to be made. Clause 166 also includes a definition
of vexatious litigant that includes a person declared a vexatious
litigant under the Family Violence Protection Act 2008.
This is because a person declared to be a vexatious litigant
under the Bill or the Family Violence Protection Act 2008 will
need to seek leave to bring an application under the Bill.
Clause 167 outlines how a person may appeal against a vexatious litigant
order.
Clause 167(1) provides that an appeal against a vexatious
litigant order may be made, with the leave of the court, to the
County Court or, if the vexatious litigant order was made by the
Children's Court, to the Trial Division of the Supreme Court.
Clause 167(2) provides that the registrar for the court must
serve notice of the application for leave on the person protected
by the vexatious litigant order and on the Attorney-General.
Clause 167(3) provides that the person protected by the
vexatious litigant order must be heard on the application if they
wish.
58
Clause 167(4) provides that the court to which a vexatious
litigant appeals may grant leave for the appeal if satisfied that
there is prima facie evidence that the appeal has merit and is not
an abuse of process. This is to ensure that a vexatious litigant
does not use the appeal process to further harass a protected
person. If leave is granted, clause 167(5) provides that the
appropriate registrar must serve notice of the hearing date for
the appeal on the vexatious litigant and the person protected by
the vexatious litigant order.
Clause 168 outlines how a person who has been declared a vexatious
litigant may bring an appeal against any other decision that has
been made under the Bill. The clause sets out who must be
notified and what documents must be filed in which court if
leave to appeal is granted. The protected person may be heard
on the leave application. The County Court or Supreme Court
(if the appeal is from a decision of the President of the
Children's Court) must consider all the circumstances of the
case when deciding whether or not to grant leave, including the
statement (see clause 168(4)) setting out a summary of the
grounds for the order declaring the person to be a vexatious
litigant.
Clause 169 provides that a vexatious litigant order may be varied, set aside
or revoked. A vexatious litigant may apply to have the order
varied, set aside or revoked but can only do so with the leave of
the court. This is to ensure that the making of vexatious litigant
orders can be reviewed, but, if the vexatious litigant applies, the
court must be satisfied there is merit in the application and it is
not an abuse of process.
Clause 170 provides that the registrar must give to the Attorney-General a
copy of any vexatious litigant order or any order varying,
setting aside or revoking a vexatious litigant order, as well as a
statement of the court's reasons.
Clause 171 provides that the Attorney-General must publish a copy of any
vexatious litigant order made (and any order varying, setting
aside or revoking a vexatious litigant order) in the Government
Gazette, without the name of the person who is protected by the
vexatious litigant order. This requirement recognises the
serious consequences of making a vexatious litigant order and
ensures that there is a public record of an order that limits
access to the court system.
59
Clause 172 provides that a copy of any vexatious litigant order that is made
must be served on all other relevant courts, so that other courts
are aware of the order and can take appropriate action when
receiving an application from the vexatious litigant.
Clause 173 provides that the Magistrates' and Children's Court must give
the Attorney-General an annual report on the number of
vexatious litigant orders made in each calendar year, as soon as
is practicable after the end of the calendar year to which it
relates. This is because the vexatious litigant power is usually
only available to the Supreme Court and it is appropriate for the
Attorney-General, as first law officer, to be advised of orders
that limit access to the court system.
PART 11--SERVICE OF DOCUMENTS
Part 11 of the Bill sets out service provisions for the Bill.
Clause 174 outlines who must be provided with a copy of a personal safety
intervention order that is made, varied, extended or revoked by
the court. This is to ensure that all relevant persons and
organisations are aware of the existence and terms of the order.
Clause 175 provides that the court can order that a copy of a personal safety
intervention order can be given to the principal of the school
where the respondent or protected person is a school student, in
certain circumstances.
This is to acknowledge that principals may need to know that a
personal safety intervention order has been made in relation to
one of their students or prospective students, so that the
principal can ensure the safety of the students involved and
manage the situation. The principal may also be advised of the
revocation of an order in relation to a student.
Clause 176 sets out how to serve documents that are required to be served
on a person under this Bill. A document must be served
personally, except if it is to be served on the Attorney-General.
Service on the Attorney-General is effected by giving a true
copy of the document to the Victorian Government Solicitor.
Clause 176(3) provides that the court may order substituted
service or another form of service where it is not reasonably
practicable to serve a document personally.
Clause 177 sets out the documentation required to prove that personal
service has occurred. A certificate of service must be sworn or
affirmed, but if served by police or a court registrar may be
certified. Clause 177(4) provides that a certificate of service
will be admissible into evidence and, in the absence of evidence
60
to the contrary, will be proof of the matters stated in it.
This provision may be particularly relevant in establishing the
grounds for a rehearing of an application as provided for in
clause 99(1).
Clause 178 states that where it has not been possible to serve a document, a
certificate of inability to serve must be filed with the court.
This certificate may assist in establishing the grounds for an
order for substituted service under clause 176. Clause 110 sets
out the process for certifying documents.
Clause 179 provides that if a person has the obligation under the Bill to
serve or give a document, then the person may serve or give the
document by causing it to be served or given by another person.
This will happen if a registrar of a court has an obligation to
serve applications or orders made under the Bill. In these cases,
service is usually and lawfully carried out by a police officer.
Clause 180 outlines the requirements for a police officer or court registrar
when completing a certificate of service.
Clause 181 outlines how information may be obtained from certain public
organisations for the purpose of service. These provisions are
to increase the likelihood of being able to locate a respondent
for service. This is particularly important for the service of
personal safety intervention orders, as an order is not
enforceable until it has been served. It is arguable that the
release of such information would already be authorised by the
Information Privacy Act 2000 under the exemptions available
to law enforcement agencies, however this provision puts it
beyond doubt.
Clause 181(1) states that this clause applies where a police
officer is applying for information from an organisation to
locate a respondent in order to serve a document under this Bill.
Clause 181(2) provides that the organisation must provide the
information if it has it.
Clause 181(3) limits the scope of the information to be
provided and the purpose it may be used for. This is to ensure
that the information is used only for the purpose of service and
the respondent's privacy is protected to the greatest extent
possible, while at the same time allowing service to occur.
61
PART 12--MISCELLANEOUS
Part 12 of the Bill deals with powers to make rules and regulations under the
Bill.
Clause 182 states that it is the intention of clauses 95 and 97 to alter or vary
section 85 of the Constitution Act 1975.
Clause 183 provides a power for the Chief Magistrate together with two or
more Deputy Chief Magistrates to jointly make rules for or with
respect to proceedings brought in the Magistrates' Court under
this Bill. This clause also restates the power to issue practice
directions, statements or notes for the court under section 16A
of the Magistrates' Court Act 1989.
Clause 183(2) lists matters which the court may make rules
about, but this provision does not limit the broad power given
to the Magistrates' Court to make rules in clause 183(1).
Clause 184 provides that the President of the Children's Court together
with two or more magistrates may jointly make rules for
proceedings brought in the Children's Court under this Bill.
This clause also restates the power to issue practice directions,
statements or notes for the court under section 592 of the
Children, Youth and Families Act 2005.
Clause 184(3) enables such rules to be adopted or applied based
on those made for the Magistrates' Court under clause 183.
Clause 185 outlines the regulation-making power under the Bill.
Clause 185(2) sets out some matters that the regulations may
prescribe, but this list does not limit in any way the power to
make regulations set out in clause 185(1).
PART 13--REPEAL OF STALKING INTERVENTION
ORDERS ACT 2008 AND TRANSITIONAL PROVISIONS
Part 13 of the Bill provides for the repeal of the Stalking Intervention
Orders Act 2008 and sets out the transitional provisions for the Bill.
Division 1--Repeal of Stalking Intervention Orders Act 2008
Division 1 of Part 13 of the Bill provides for the repeal of the Stalking
Intervention Orders Act 2008.
Clause 186 provides for the repeal of the Stalking Intervention Orders
Act 2008.
62
Division 2--Transitional provisions
Division 2 of Part 13 of the Bill sets out the transitional provisions for the
Bill.
Clause 187 provides definitions for the transitional provisions.
Reference to the repealed Act means the Stalking Intervention
Orders Act 2008.
The definitions of both final order and interim order refer to
orders made under the Stalking Intervention Orders Act
2008.
Commencement day for the purposes of Part 13 is defined to
mean the day clause 186 commences operation.
Clause 188 provides transitional provisions for stalking intervention orders
under the Stalking Intervention Orders Act 2008.
Clause 188(1) provides that on and from the commencement
day, a final order under the Stalking Intervention Orders Act
2008 is taken to be a final order under the Bill.
Clause 188(2) provides that on and from the commencement
day, an intervention order under the Stalking Intervention
Orders Act 2008 continues to contain the same conditions and
prohibitions and can be varied, revoked or extended under the
Bill.
Clause 189 provides that on and from the commencement day, an interim
order under the Stalking Intervention Orders Act 2008 is
taken to be an interim order under the Bill.
Clause 189(2) provides that if, immediately before the
commencement day, an interim stalking intervention order had
been made under the Stalking Intervention Orders Act 2008
but proceedings for the hearing of the application for the final
order had not yet started, the proceedings for the hearing may
proceed under the Bill as if it were a hearing for a personal
safety intervention order and the interim order were an interim
personal safety intervention order.
Clause 190 provides that if, immediately before the commencement day, an
application for an interim or final stalking intervention order or
for the variation, revocation or extension of an interim or final
stalking intervention order had been made under the Stalking
Intervention Orders Act 2008 but the proceedings had not yet
started, the application can be dealt with under the Bill.
63
Clause 191 provides that if, immediately before the commencement day,
proceedings for an application or an appeal under the Stalking
Intervention Orders Act 2008 had commenced in a court but
not concluded, the proceedings should continue as though the
Stalking Intervention Orders Act 2008 was still in force.
Clause 192 provides that if a corresponding interstate order or a
corresponding New Zealand order has been registered in
Victoria under the Stalking Intervention Orders Act 2008
before the commencement day, then on and from that day, it is
taken to be registered as a corresponding interstate order or a
corresponding New Zealand order under the Bill.
Clause 193 provides that the court may have regard to behaviour committed
by the respondent before the commencement day that, if it had
been committed after the commencement day, would be
prohibited behaviour or stalking under the Bill.
Clause 194 provides that, after commencement, directions relating to
firearms, firearms authority or ammunition, and firearms,
firearms authority or ammunition seized or surrendered under
the Stalking Intervention Orders Act 2008 will be dealt with
under Part 5 of the Bill.
However, if proceedings have commenced for the hearing of a
final order, interim order or the variation, revocation or
extension of a final order but not yet been finalised or an appeal
has commenced but not yet been finalised as set out in clause
191(2), the directions are to proceed under the repealed Act.
Clause 195 provides that, after commencement, firearms, firearms
authority, ammunition or other articles seized pursuant to a
search warrant under the Stalking Intervention Orders Act
2008 will be dealt with under Part 5 of the Bill.
However, if proceedings have commenced for the hearing of a
final order, interim order or the variation, revocation or
extension of a final order but not yet been finalised or an appeal
has commenced but not yet been finalised as set out in clause
191(2), the directions are to proceed under the repealed Act.
Clause 196 provides that any special police immunities provided for in
section 7A(2) of the Crimes (Family Violence) Act 1987 and
relied on by police in those proceedings continue to apply to
those proceedings, including where a police officer represents
another police officer at a hearing in accordance with 7A(1) of
that Act.
64
PART 14--CONSEQUENTIAL AMENDMENTS TO THE
FAMILY VIOLENCE PROTECTION ACT 2008 AND OTHER
ACTS
Part 14 of the Bill outlines the consequential amendments to other legislation
that flow from the Bill.
Division 1--Amendments to the Family Violence Protection Act
2008
Division 1 of Part 14 of the Bill outlines the consequential amendments to the
Family Violence Protection Act 2008 that flow from the Bill.
Clause 197 makes a minor amendment to the definition of cognitive
impairment in section 4 of the Family Violence Protection Act
2008 by substituting "Evidence (Miscellaneous Provisions)
Act 1958" for "Evidence Act 1958". This is to update the
name of the relevant Act to reflect statute law revision.
Subclause (b) substitutes a new definition of property into
section 4 of the Family Violence Protection Act 2008.
This definition more clearly articulates that property includes
property owned by the family member.
Clause 198 inserts a note into section 48 of the Family Violence
Protection Act 2008 to highlight how a document may be
served for the purposes of that section.
Clause 199 substitutes section 52(3) of the Family Violence Protection
Act 2008 to provide a new definition of appropriate person for
the purposes of subsection (2). This is to clarify that when bail
is granted to a respondent by a bail justice, the police must
provide a copy of the bail conditions to the affected person.
Clause 200 clause 200(1) makes a minor amendment to the note at the foot
of section 53(1) of the Family Violence Protection Act 2008,
substituting "firearms authority" with "firearms authority,
weapons approval or weapons exemption".
Clause 200(2) inserts a new subsection (3) into section 53 of the
Family Violence Protection Act 2008 which clarifies that
behaviour that occurs interstate, or occurs when the affected
family member is interstate, may be relevant for the purposes of
family violence intervention order proceedings. This is so a
person is not denied the protection of a family violence
intervention order where a connection to Victoria exists.
65
Clause 201 makes a minor amendment to section 65(2)(a) and the note at
the foot of section 65(2) of the Family Violence Protection
Act 2008 expanding the evidence law that is applicable in
family violence proceedings to include providing that witnesses
can give evidence through an interpreter, and providing for the
giving of evidence by a person who is deaf or mute.
Clause 201(3) makes a minor amendment to section 66(2) of
the Family Violence Protection Act 2008 to make clear that
the evidence provisions in that Act apply despite anything in
any other Act, other than the Charter of Human Rights and
Responsibilities.
Clause 202 inserts the new section 67A into the Family Violence
Protection Act 2008. New section 67A provides that
section 194 of the Evidence Act 2008 applies to a proceeding
for a personal safety intervention order. Clause 202 also inserts
a note at the foot of the new section 67A, which explains that
section 194 of the Evidence Act 2008 provides that the court
may issue a warrant to arrest a witness who fails to appear at a
hearing when called or to arrest a witness who is avoiding
service of a subpoena or summons or who has been served with
a subpoena but is unlikely to comply with it.
Clause 203 clarifies that the test for a final family violence intervention
order, in section 74(1) of the Family Violence Protection Act
2008 includes situations where the respondent is "likely to
continue" to commit family violence as well as situations where
the respondent "is likely to do so again". This is to put beyond
doubt that a continuing course of family violence may be
grounds for the making of a final family violence intervention
order, as well as discrete acts that are likely to be repeated.
Clause 203(2) inserts a new subsection (3) beneath the note at
the foot of section 74 of the Family Violence Protection Act
2008 which clarifies that behaviour that occurs interstate, or
occurs when the affected family member is interstate, may be
relevant for the purposes of family violence intervention order
proceedings. This is so a person is not denied the protection of
a family violence intervention order where a connection to
Victoria exists.
Clause 204 makes a minor amendment to section 78(5) of the Family
Violence Protection Act 2008 substituting the term "affected
family member" for "protected person". This is to reflect the
fact that, prior to the making of a final order, the alleged victim
will be an affected family member, not a protected person,
because they are not yet protected by a final order.
66
Clause 205 inserts an exception into section 118 of the Family Violence
Protection Act 2008 to clarify that nothing prevents appeal
from the County or Supreme Courts on the basis of
jurisdictional error. This is to reflect recent case law on appeal
rights.
Clause 206 amends section 120 of the Family Violence Protection Act
2008 to clarify that nothing in section 120 of the Family
Violence Protection Act 2008 prevents appeal from the County
or Supreme Courts on the basis of jurisdictional error. This is
to reflect recent case law on appeal rights.
Clause 207 substitutes section 200 of the Family Violence Protection Act
2008 to more clearly outline when an annual report on the use
of vexatious litigant provisions must be provided to the
Attorney-General.
Clause 208 amends section 202 of the Family Violence Protection Act
2008 to provide that service of a document on the Attorney-
General is effected by giving a true copy of the document to the
Victorian Government Solicitor.
Clause 209 inserts the new Division 6 of Part 14 into the Family Violence
Protection Act 2008.
Division 6 contains transitional provisions outlining the
commencement of amendments to the Family Violence
Protection Act 2008 contained in Division 1 of Part 14 of the
Bill.
Actions constituting family violence under new sections 53(3)
and 74(3) that occurred prior to the commencement of these
clauses will be able to be considered for the purpose of family
violence intervention order proceedings. This is consistent with
the approach in clause 193 of the Bill.
Section 224C(5) includes an additional requirement that the
first annual report under section 200 of the Family Violence
Protection Act 2008 prepared by each of the Magistrates' Court
and the Children's Court must also include the number of orders
made under Part 11 in the period commencing on 8 December
and finishing on 31 December in the year before that to which
the report relates.
67
Division 2--Consequential amendments to the Family Violence
Protection Act 2008--amendments relating to Parts 9 and 10
Division 2 of Part 14 of the Bill provides for consequential amendments to
Parts 9 and 10 of the Family Violence Protection Act 2008.
Clause 210 inserts a definition of personal safety intervention order into
section 4 of the Family Violence Protection Act 2008 to
provide for the intersection provisions in that are to be inserted
into the Family Violence Protection Act 2008 in the new Part
9A inserted by clause 215 of the Bill.
Clause 211 inserts a new section 53A after section 53 of the Family
Violence Protection Act 2008 precluding the making of a
family violence intervention order where there is an existing
personal safety intervention order under which the affected
person is a protected person and the respondent is a respondent,
or the respondent is a protected person and the affected person a
respondent.
This is because the intention is that if parties are in a "family"
or "family-like" relationship, the matter must be heard under the
Family Violence Protection Act 2008, while if they are not in
a "family" or "family-like" relationship, the matter must be
heard under the Personal Safety Intervention Orders Bill 2010.
However, the provision does not preclude the making of an
interim family violence intervention order where there is an
existing interim personal safety intervention order for which the
respondent is a protected person and the affected person is a
respondent. This is because a person making an application for
a family violence intervention order where they are the
respondent to an existing interim personal safety intervention
order (ie. a cross-application) may dispute their characterisation
as a non-family member of the other party and should not be
denied interim protection.
In making an interim personal safety intervention order, the
court will not have had to make a finding as to whether the
parties are family members or whether family violence has been
committed.
Clause 212 inserts the new section 74A into the Family Violence
Protection Act 2008 which prohibits the making of a final
family violence intervention order where there is an existing
personal safety intervention order for which the affected person
is a protected person and the respondent is a respondent, or
where the respondent is a protected person and the affected
person is a respondent.
68
However, a court may make a final family violence intervention
order where there is an existing personal safety intervention
order if the court first revokes the personal safety intervention
order. For example, if there is an existing interim personal
safety intervention order protecting Mr X from Ms Y, and Ms
Y has made an application for a family violence intervention
order against Mr X, the court can make a final family violence
intervention order to protect Ms Y from Mr X if it first revokes
the interim personal safety intervention order. New section
176B provides that applications for personal safety intervention
orders may be heard together with applications for family
violence intervention orders if it is appropriate to do so.
Clause 213 amends section 119 of the Family Violence Protection Act
2008 to provide that an appeal court in may make a
determination under clause 136(2) of the Bill.
This is so that the appeal court may make a determination that
the parties are not family members, and may strike out the
matter or make a determination to keep hearing the matter as an
application for a family violence intervention order.
Clause 214 repeals section 171A of the Family Violence Protection Act
2008. Section 171A relates to the intersection of the Family
Violence Protection Act 2008 the Stalking Intervention
Orders Act 2008.
Clause 215 inserts the new Part 9A into the Family Violence Protection
Act 2008.
The new Part 9A of the Family Violence Protection Act 2008
sets out the relationship between the Family Violence
Protection Act 2008 and the Personal Safety Intervention
Orders Bill.
New section 176A of the Family Violence Protection Act
2008 contains definitions relevant to the operation of this Part
drawn from the Personal Safety Intervention Orders Bill.
New section 176B of the Family Violence Protection Act
2008 allows any number of applications for family violence
intervention orders to be heard together with any number of
applications for personal safety intervention orders if the court
considers them sufficiently related and it is appropriate that
they are heard together.
This is designed to give the court flexibility to hear related
applications together so that the court may make appropriate
orders in the circumstances. This may occur, for example,
where there is a dispute or inappropriate behaviour involving
69
persons who are related to each other and persons who are not
related, as may occur in some communities. If there are cross
applications in different intervention order systems, or there is
confusion over whether parties are family members and which
system they should have applied under, the court can hear all
matters together and make decisions accordingly.
A decision to hear applications together can be made on the
application of applicants or respondents or if the court considers
it in the interests of justice to do so.
New section 176C of the Family Violence Protection Act
2008 provides that a family violence intervention order will
prevail to the extent of any inconsistency with a personal safety
intervention order.
New Division 2 of Part 9A of the Family Violence Protection
Act 2008 governs the interaction between the Family Violence
Protection Act 2008 and the Personal Safety Intervention
Orders Bill.
The Personal Safety Intervention Orders Bill provides that
persons who are not family members, as defined in the Family
Violence Protection Act 2008, cannot have a final contested
family violence intervention order made to protect them.
Similarly, persons who are family members cannot have a final
contested personal safety intervention order made to protect
them.
New Part 9A of the Family Violence Protection Act 2008 sets
out what the court may do if a person who is in a family
relationship with the respondent has applied for a personal
safety intervention order under the Personal Safety Intervention
Orders Bill.
Part 8 of the Personal Safety Intervention Orders Bill sets out
what will happen if a person who is not in a family relationship
with the respondent applies for a family violence intervention
order under the Family Violence Protection Act 2008.
New section 176D of the Family Violence Protection Act
2008 limits the application of Division 2 of Part 9A.
New section 176E of the Family Violence Protection Act
2008 sets out what the court may do if it is satisfied that an
affected person and a respondent to personal safety intervention
order proceedings are, in fact, family members, or where the
parties consent that they are family members.
70
The court may strike out the application and send the parties
back to the registry to make a new application under the family
violence intervention order system.
Or, the court may make a determination under section
176E(2)(b) to continue to hear the application as an application
for a family violence intervention order. The court can make
more than one determination to continue hearing the application
as an application for a family violence intervention order during
the proceeding. This may occur where the hearing is for
multiple applications or where, at a subsequent hearing, the
court is given more information about the relationship between
the parties.
New section 176F of the Family Violence Protection Act 2008
provides that if the County Court or Supreme Court is satisfied
that the parties to personal safety intervention order proceedings
are family members, and has made a determination under
section 176E(2)(b), the Magistrates' Court or Children's Court
cannot reverse that determination.
New section 176G of the Family Violence Protection Act
2008 provides that if the court is satisfied that parties to
personal safety intervention order proceedings are family
members, and has made a determination under section
176E(2)(b) to continue to hear the application as an application
for a family violence intervention order, an application for a
personal safety intervention order is taken, as much as possible,
to be an application for a family violence intervention order.
This is because the two systems substantially mirror each other
procedurally, and it provides a flexible system to enable matters
to be heard under the correct system. Once the determination
has been made, the court may make any orders it could
ordinarily make in relation to a family violence intervention
order application.
The provision states that anything that has been done under the
Personal Safety Intervention Orders Bill will be taken, to the
extent possible, to have been done under the Family Violence
Protection Act 2008.
In particular, if a summons or warrant to arrest have been issued
under the Personal Safety Intervention Orders Bill, they are
taken to have been issued under the Family Violence
Protection Act 2008. Bail conditions set under the Personal
Safety Intervention Orders Bill continue to apply under the
Family Violence Protection Act 2008. A direction to
surrender firearms or a weapon given under the Personal Safety
Intervention Orders Bill is taken to be a direction under the
71
Family Violence Protection Act 2008. However, an order
permitting a child to be present in court does not continue to
apply.
This new section also clarifies that Division 8 of Part I of the
Evidence (Miscellaneous Provisions) Act 1958 continues to
apply to the proceeding. This provides for the continued
confidentiality of mediation conferences conducted under
Division 2 of Part 3 of the Personal Safety Intervention Orders
Bill.
New section 176H of the Family Violence Protection Act
2008 provides that where firearms, weapons or articles are
seized pursuant to a search warrant issued under clause 117 of
the Personal Safety Intervention Orders Bill, if the court is
subsequently satisfied that parties to personal safety
intervention order proceedings are family members, and has
made a determination under section 176E(2)(b) to continue to
hear the application as an application for a family violence
intervention order, those firearms, weapons or articles are to be
treated as if they were seized under the Family Violence
Protection Act 2008.
New section 176I of the Family Violence Protection Act 2008
provides for situations where a person has surrendered firearms,
a firearms authority, ammunition or a weapon under clause 117
of the Personal Safety Intervention Orders Bill, or police have
seized firearms, firearms authority, ammunition or a weapon
under clause 120 of the Personal Safety Intervention Orders
Bill. If the court is subsequently satisfied that parties to
personal safety intervention order proceedings are family
members, and has made a determination under section
176E(2)(b) to continue to hear the application as an application
for a family violence intervention order, the firearms, firearms
authority or weapon is treated as if it were surrendered or seized
under the Family Violence Protection Act 2008.
New section 176J of the Family Violence Protection Act 2008
provides that if the court is satisfied that parties to personal
safety intervention order proceedings are family members, and
has made a determination under section 176E(2)(b) to continue
to hear the application as an application for a family violence
intervention order, the court must revoke any existing interim
personal safety intervention order.
The court may make a new interim family violence intervention
order if there are grounds to do so. This is so that when a court
is satisfied that parties to personal safety intervention order
proceedings are family members, and has made a determination
72
under clause 176E(2)(b) to continue to hear the application as
an application for a family violence intervention order, the court
can consider the need for ongoing protection of a family
violence intervention order, as though the applicant had made
an application for a family violence intervention order.
New section 176K of the Family Violence Protection Act
2008 provides for situations where the court is satisfied that
parties to personal safety intervention order proceedings are
family members, and has made a determination under clause
176E(2)(b) to continue to hear the application as an application
for a family violence intervention order, at a hearing or mention
date for an application for a variation of an interim personal
safety intervention order. In such cases, the court must revoke
the interim personal safety intervention order and may make an
interim family violence intervention order if there are grounds
for making the order under section 53, having regard to the
application for variation of the interim personal safety
intervention order.
This means that, in effect, the court may make an interim
family violence intervention order that is in line with the
variations suggested in the variation application for the personal
safety intervention order if the court thinks fit.
New section 176L of the Family Violence Protection Act
2008 provides for situations where the court is satisfied that
parties to personal safety intervention order proceedings are
family members, and has made a determination under section
176E(2)(b) to continue to hear the application as an application
for a family violence intervention order, at a hearing or mention
date for an application to revoke an interim personal safety
intervention order. In such cases, the court must revoke the
interim personal safety intervention order and may make an
interim family violence intervention order if there are grounds
for making the order under section 53 of the Family Violence
Protection Act 2008, having regard to the application to revoke
the interim personal safety intervention order.
This means that, in effect, the court may decline to make an
interim family violence intervention order, even if there are
grounds.
New section 176M of the Family Violence Protection Act
2008 provides for situations where the court is satisfied that
parties to personal safety intervention order proceedings are
family members, and has made a determination under section
176E(2)(b) to continue to hear the application as an application
for a family violence intervention order during the hearing of an
application for a final personal safety intervention order.
73
On making the determination, if there is an existing interim
personal safety intervention order, the court must revoke the
interim personal safety intervention order and may make an
interim family violence intervention order if there are grounds
for making the order under section 53 of the Family Violence
Protection Act 2008. This may be useful if the court believes
that the interests of justice require the matter to be adjourned
but there are still safety concerns for the affected person.
The court may also make any order the court could make in a
proceeding for a family violence intervention order, or continue
to hear the matter as the interests of justice require. This clause
is designed to provide enough flexibility for the courts to make
the orders that are appropriate in the circumstances of the case.
New section 176N of the Family Violence Protection Act
2008 provides that where an interim personal safety
intervention order is revoked under any of new sections 176J,
176K, 176L or 176M, that revocation has effect as a revocation
of an interim personal safety intervention order under the
Personal Safety Intervention Orders Bill and takes effect at the
time of the revocation. This means that once an interim order is
revoked under these clauses, it ends.
New section 176O of the Family Violence Protection Act
2008 provides that if the court is satisfied that parties to
personal safety intervention order proceedings are family
members, and has made a determination under section
176E(2)(b) to continue to hear the application as an application
for a family violence intervention order, the court must explain
to the respondent and affected family member the effect of the
determination and, if there is an interim order in force, the
effect of the determination on the interim order. This is to
ensure that the parties understand the orders that are in place
between them and the legal significance of the determination.
New subsection (2) clarifies that a failure by the court to
explain a determination under this clause does not affect the
validity of the order.
Clause 216 substitutes section 189(1) of the Family Violence Protection
Act 2008. This sets out who may apply for a vexatious litigant
order. The new section provides that an application may be
made by--
· the Attorney-General; or, with leave of the court;
· a person against whom applications have been made
under the Family Violence Protection Act 2008; or
74
· a person against whom applications have been made
under the Crimes (Family Violence) Act 1987 for, or
in relation to, an intervention order other than a stalking
intervention order; or
· a person against whom complaints or applications have
been made for family-violence type intervention orders
as detailed above, where additional applications have
also been made under other intervention order systems,
being the Personal Safety Intervention Orders Bill, the
Stalking Intervention Orders Act 2008 or complaints
or applications have been made for, or in relation to, a
stalking intervention order under Crimes (Family
Violence) Act 1987 (as in force immediately before its
repeal).
In other words, for a person to protect themselves from vexatious
behaviour, they must have had at least one family violence-type
intervention order application made against them. This could
have been under the Family Violence Protection Act 2008, or a
family violence order under the Crimes (Family Violence) Act
1987.
If a person has had at least one "family violence-type" application
made against them, the court can also consider any "stalking-
type" applications made against the same person.
This is because a vexatious litigant will often make vexatious
applications under more than one system. These provisions will
enable the court to prevent a vexatious litigant from simply
moving to another intervention order system to continue their
vexatious behaviour. This will be of particular benefit where the
vexatious litigant is using multiple applications in different
systems to pursue an individual victim, which may occur in
stalking or family violence matters.
Clause 217 inserts references in section 190(1) of the Family Violence
Protection Act 2008 that will allow the Attorney-General,
when considering whether to make an application to declare
someone a vexatious litigant, to request documents from the
court in relation to proceedings under the Family Violence
Protection Act 2008, Crimes (Family Violence) Act 1987, the
Personal Safety Intervention Orders Bill or the Stalking
Intervention Orders Act 2008.
75
Clause 218 amends section 193 of the Family Violence Protection Act
2008, which sets out the power of the court to declare a person
a vexatious litigant. The amendment expands the test for a
vexatious litigant order to consider if a person has habitually,
persistently and without any reasonable ground instituted
proceedings against the same person under any one or more of
the listed Acts. The inclusion of proceedings brought under the
Bill, the Stalking Intervention Orders Act 2008, the Family
Violence Protection Act 2008 and/or the Crimes (Family
Violence) Act 1987 is so that vexatious behaviour across the
intervention order systems, past and present, is considered.
Accordingly, clause 218(2) inserts an example of vexatious
behaviour in both the family violence and personal safety
intervention order systems into the list of examples at the foot
of section 193.
Section 193(2) is amended to provide that a person who is
declared a vexatious litigant cannot begin any proceedings
under the Family Violence Protection Act 2008 or under the
Personal Safety Intervention Orders Bill against the person
protected by the order or their children without the leave of the
court. This is to ensure that the person declared a vexatious
litigant can still use the provisions of the Bill and the Family
Violence Protection Act 2008, but must first demonstrate
legitimate grounds for doing so before the person protected by
the order is required to attend court for a hearing.
Clause 219 amends section 194 of the Family Violence Protection Act
2008 to expand the definition of a vexatious litigant in that
section to also include a person declared to be a vexatious
litigant under the Personal Safety Intervention Orders Bill.
This is because a person declared to be a vexatious litigant
under either the Personal Safety Intervention Orders Bill or the
Family Violence Protection Act 2008 will need to seek leave
to bring an application under either system in relation to a
person protected by the order or that person's children.
Clause 220 inserts new subsections (6), (7) and (8) into section 224C of the
Family Violence Protection Act 2008. These subsections
govern the transitional arrangements for the consequential
amendments to the Family Violence Protection Act 2008 in
Division 2 of Part 14 of the Bill, which contains changes to the
vexatious litigant provisions of the Family Violence
Protection Act 2008.
76
Division 3--Consequential and Miscellaneous Amendments to
Other Acts
Division 3 of Part 14 of the Bill provides for consequential amendments to
other Acts that flow from the Bill.
Clause 221 provides that the Acts set out in the Schedule are amended in
accordance with the Schedule.
Clause 222 makes a minor amendment to section 60E(1)(l) of the
Corrections Act 1986 inserting the word "final" before "family
violence intervention order" to clarify that the assessment of the
likelihood that the prisoner will commit an offence should not
draw on the standard for an interim family violence intervention
order.
Clause 223 substitutes the term "dispute settlement centres" for the term
"neighbourhood mediation centres" in section 21M(1)(E) of the
Evidence (Miscellaneous Provisions) Act 1958, as
neighbourhood mediation centres have been replaced by the
Dispute Settlement Centre of Victoria's "dispute settlement
centres".
Clause 223(2) repeals section 21M(2) of the Evidence
(Miscellaneous Provisions) Act 1958 which contains
redundant definitions.
Clause 224 makes a minor amendment to section 99G(1)(l) of the
Sentencing Act 1991 inserting the word "final" before "family
violence intervention order" to clarify that the assessment of the
likelihood that the prisoner will commit an offence should not
draw on the standard for an interim family violence intervention
order.
Division 4--Repeal of Part 14 and Schedule
Division 4 of Part 14 of the Bill provides for the repeal of Part 14 and the
Schedule.
Clause 225 provides for the repeal of Part 14 and the Schedule.
77
SCHEDULE--CONSEQUENTIAL TO OTHER ACTS
The Schedule to the Bill outlines the consequential amendments to other Acts
that flow from the Bill.
1--Bail Act 1977
Item 1.1 makes a minor amendment to the Bail Act 1977 to refer to the
Bill, and the offence under it of contravention of a personal
safety intervention order.
2--Children, Youth and Families Act 2005
Item 2.1 makes minor amendments to the definitions of child and proper
venue in the Children, Youth and Families Act 2005 to refer
to the Bill.
Item 2.1(d) also amends the definition of proper venue in the
Children, Youth and Families Act 2005 to insert a definition
of proper venue in relation to proceedings brought under the
Bill.
Item 2.2 makes a minor amendment to the jurisdiction of the Family
Division in section 515(2) of the Children, Youth and
Families Act 2005, substituting a reference to the Bill for the
current reference to the Stalking Intervention Orders Act
2008.
Item 2.3 makes a minor amendment to the jurisdiction of the
Neighbourhood Justice Division in section 520C of the
Children, Youth and Families Act 2005, substituting a
reference to the Bill for the current reference to the Stalking
Intervention Orders Act 2008.
Item 2.4 makes a minor amendment to section 520C(3)(c)(iii) of the
Children, Youth and Families Act 2005, to refer to
"prohibited behaviour" as well as "stalking".
3--Corrections Act 1986
Item 3.1 makes a minor amendment to section 3(1) of the Corrections
Act 1986 inserting a definition of personal safety intervention
order that includes prior stalking-type intervention orders as
well as personal safety intervention orders under the Bill, and
repealing the definition of stalking intervention order.
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Item 3.2 makes a minor amendment to section 60A(1)(e) of the
Corrections Act 1986 substituting the current section with a
new section containing a reference to a contravention of a
personal safety intervention order or a corresponding interstate
order within the meaning of the Bill.
Item 3.3 makes a minor amendment to section 60A(3)(a)(ii) of the
Corrections Act 1986 substituting the current section with a
new section containing a reference to a personal safety
intervention order and to a corresponding interstate order within
the meaning of the Bill.
Item 3.4 makes a minor amendment to section 60A(3)(b)(ii) and 60DA
of the Corrections Act 1986 substituting a reference to
"personal safety intervention order" for any current reference to
"stalking intervention order".
Item 3.5 makes a minor amendment to section 60AB(1)(d) of the
Corrections Act 1986 substituting the current section with a
new section containing a reference to a contravention of a
personal safety intervention order or a corresponding interstate
order within the meaning of the Bill.
Item 3.6 makes a minor amendment to section 60E(1)(1a) of the
Corrections Act 1986 substituting a reference that a final order
could be made under the Bill for the current reference "a final
order could be made under the Stalking Intervention Orders
Act 2008".
4--Crimes Act 1958
Item 4.1 substitutes a new note for the note at the foot of section 21A of
the Crimes Act 1958, to refer to the making of a personal
safety intervention order under the Bill rather than an
intervention order under the Stalking Intervention Orders Act
2008.
5--Firearms Act 1996
Item 5.1 makes a minor amendment to section 3(1) in paragraphs (c)(ib)
and (c)(ic) of the Firearms Act 1996 substituting a reference to
the Bill for the current reference to the Stalking Intervention
Orders Act 2008.
Item 5.2 makes a minor amendment to section 53(4)(ab) of the Firearms
Act 1996 substituting a reference to the Bill for the current
reference to the Stalking Intervention Orders Act 2008.
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Item 5.3 makes a minor amendment to section 189(5)of the Firearms
Act 1996 substituting a reference to the Bill for the current
reference to the Stalking Intervention Orders Act 2008.
6--Health Records Act 2001
Item 6.1 makes a minor amendment to section 3(ca) of the Health
Records Act 2001 substituting a reference in the definition of
law enforcement function of "an intervention order under the
Stalking Intervention Orders Act 2008" with a reference to a
personal safety intervention order under the Bill.
7--Magistrates' Court Act 1989
Item 7.1 makes minor amendments to the definition of proper venue in
section 3(1), substituting a reference to the Bill in paragraph (b)
for the current reference to the Stalking Intervention Orders
Act 2008.
Item 7.1(b) substitutes a definition of proper venue in the
Magistrates' Court Act 1989 in relation to proceedings
brought under the Bill.
Item 7.2 makes a minor amendment to section 4F(1)(b)(iii) of the
Magistrates' Court Act 1989 substituting a reference to "an
intervention order under the Stalking Intervention Orders Act
2008" with a reference to an intervention order under the Bill.
Item 7.3 makes a minor amendment to section 4O(2) of the Magistrates'
Court Act 1989 substituting a reference to the Bill for the
current reference to the Stalking Intervention Orders Act
2008 and inserting the phrase "or prohibited behaviour" after
"stalking" in section 4O(2)(ab)(iii) to reflect the coverage of the
Bill.
Item 7.4 makes a minor amendment to section 4O(3)(da) of the
Magistrates' Court Act 1989 substituting a reference to the
Bill for the current reference to the Stalking Intervention
Orders Act 2008.
8--Police Regulation Act 1958
Item 8.1 makes a minor amendment to Part 3 of Schedule 1, for
Item 3.2A substituting the current Item with an Item referencing
an offence under section 100 of this Bill.
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9--Residential Tenancies Act 1997
Item 9.1 makes a minor amendment to section 3(1) of the Residential
Tenancies Act 1997 including a reference to this Bill in the
definition of exclusion condition, and inserting a reference to
an exclusion condition under clause 67 of the Bill.
Item 9.2 makes a minor amendment to section 3(1) of the Residential
Tenancies Act 1997 inserting a definition of personal safety
intervention order, referring to the definition in this Bill.
Item 9.3 makes a minor amendment to the heading of section 70A of the
Residential Tenancies Act 1997 substituting "an intervention
order" for the current "a family violence intervention order".
Item 9.4 makes a minor amendment to certain subsections of section
70A of the Residential Tenancies Act 1997 so that certain
references to family violence safety notices are altered to refer
to family violence safety notices or personal safety intervention
orders. The clause also inserts the reference "or a personal
safety intervention order" in subsection (4)(a) after any
reference to a family violence intervention order.
Item 9.5 makes a minor amendment substituting section 233A(1) of the
Residential Tenancies Act 1997 so that the definition of final
order refers to the meaning of the term under the Bill as well
the meaning of the term under the Family Violence Protection
Act 2008.
Item 9.6 makes a minor amendment inserting the words "by a protected
person under a final family violence intervention order" after
"section 233A(3)" in section 233D(1), of the Residential
Tenancies Act 1997.
Item 9.7 makes a minor amendment section 234(2A)(b) of the
Residential Tenancies Act 1997 inserting references to a
personal safety intervention order after any reference to a
family violence intervention order in that section.
Item 9.8 inserts a new subsection (5) into section 506 of the Residential
Tenancies Act 1997 outlining how service may be effected on
a person excluded from their residence by an exclusion
condition in a personal safety intervention order.
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10--Sentencing Act 1991
Item 10.1 makes a minor amendment to section 3(1) of the Sentencing
Act 1991 inserting a definition of personal safety intervention
order that includes prior stalking-type intervention orders as
well as personal safety intervention orders under the Bill, and
repealing the definition of stalking intervention order.
Item 10.2 makes a minor amendment to section 26N(1)(e) of the
Sentencing Act 1991 substituting the current section with a
new section containing a reference to a contravention of a
personal safety intervention order or a corresponding interstate
order within the meaning of the Bill.
Item 10.3 makes a minor amendment to section 26N(3)(a)(ii) of the
Sentencing Act 1991 substituting the current section with a
new section containing a reference to a personal safety
intervention order and to a corresponding interstate order within
the meaning of the Bill.
Item 10.4 makes a minor amendment to section 26O(1)(d) of the
Sentencing Act 1991 substituting the current section with a
new section containing a reference to a contravention of a
personal safety intervention order or a corresponding interstate
order within the meaning of the Bill.
Item 10.5 makes a minor amendment to sections 26N(3)(b)(ii) and 26R of
the Sentencing Act 1991 substituting a reference to "personal
safety intervention order" for any current reference to "stalking
intervention order".
Item 10.6 makes a minor amendment to section 99G(1)(la) of the
Sentencing Act 1991 substituting a reference that a final
personal safety intervention order could be made under the Bill
for the current reference that a final order could be made under
the Stalking Intervention Orders Act 2008.
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