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Justice Legislation Amendment (Victims
of Crime Assistance and Other Matters)
Bill 2010
Introduction Print
EXPLANATORY MEMORANDUM
INTRODUCTION
The Justice Legislation Amendment (Victims of Crime Assistance and Other
Matters) Bill 2010 (the Bill) amends--
· the Sentencing Act 1991 and the Children, Youth and
Families Act 2005 in relation to victim impact statements.
The amendments provide that victims or their representatives
may read aloud the victim impact statement in court, and
clarify that a victim impact statement may include non-written
and other material. The amendments include provision for
alternative arrangements for reading aloud a statement or the
giving of evidence in relation to statements;
· the Victims of Crime Assistance Act 1996 to enable the Chief
Magistrate to delegate powers of the Victims of Crime
Assistance Tribunal to judicial registrars, and provide for a
category of reasonable safety-related expenses;
· the Family Violence Protection Act 2008, with consequential
amendments to the Stalking Intervention Orders Act 2008,
to address operational issues and ensure the two schemes are
procedurally aligned;
· the Children, Youth and Families Act 2005 with respect to
the Children and Young Persons Infringement Notice System
and makes similar amendments to the Infringements Act 2006
with respect to the commencement of proceedings in the
Children's Court;
561460 1 BILL LA INTRODUCTION 23/3/2010
· the Liquor Control Reform Act 1998 to increase the
infringement penalty amount for the offence of a person who is
drunk, violent or quarrelsome refusing or failing to leave
licensed premises if requested to do so by a licensee, a
permittee or a member of the police force;
· the Summary Offences Act 1966 to increase the maximum
penalties for the offences of drunk in a public place, drunk and
disorderly in a public place and behaving in a disorderly
manner. The Bill also amends the Act to increase the
infringement penalty amounts for those three offences along
with the offence of behaving in a riotous, indecent, offensive or
insulting manner.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill.
Clause 2 provides for the commencement of the Bill. Part 1 and Part 4 of
the Bill come into operation on the day after the day of Royal
Assent. The remaining provisions will come into operation on a
day or days to be proclaimed. If any of the remaining provisions
do not come into operation before 1 January 2011, they will
come into operation on that day.
PART 2--VICTIMS OF CRIME
Division 1
Division 1 of Part 2 of the Bill makes amendments to Division 5 of Part 5.2
of the Children, Youth and Families Act 2005 in relation to that Act's
victim impact statement provisions. Those provisions provide that if the
Court finds a child guilty of an offence, a victim of the offence may make a
victim impact statement to the Court for the purpose of assisting the Court in
determining sentence. The broad definition of victim in the Act means that
victims may include both the person against whom the crime was committed,
and family members and other persons who have suffered injury as a direct
result of the offence.
The Bill's amendments arise from consideration of the recommendations in
the evaluation report titled "A Victim's Voice: Victim Impact Statements in
Victoria", published by the Victims Support Agency of the Department of
Justice, Victoria.
2
Clause 3 amends the definition of victim in section 3(1) of the Children
Youth and Families Act 2005. The amended definition is--
victim, in relation to an offence, means a person who, or body
that, has suffered injury, loss or damage (including grief, distress,
trauma or other significant adverse effect) as a direct result of the
offence, whether or not that injury, loss or damage was
reasonably foreseeable by the child found guilty of the offence;
The amended definition of victim is the same as the definition in
the Sentencing Act 1996.
Clause 4 Subclause (1) inserts new section 359(4A) after section 359(4) of
the Children Youth and Families Act 2005, providing that a
victim impact statement may include photographs, drawings,
poems and other material that relates to the impact of the offence
on the victim or to any injury, loss or damage suffered by the
victim as a result of the offence. The materials are not limited to
materials produced by the victims themselves, and promote
flexibility for victims in expressing the impact of the offence.
For example, a photograph or recording of a deceased person
may be included in a victim impact statement to demonstrate the
loss experienced to the family member.
Subclause (2) substitutes section 359(12) of the Children, Youth
and Families Act 2005 with new subsections (12), (12A) and
(12B) to expand the current provisions in relation to the reading
aloud of victim impact statements.
New subsection (12) provides that a person who has made a
victim impact statement may request that any part of the
statement is read aloud or displayed by that person, or a person
chosen by them who is approved by the Court. The person may
also request that any other part of that statement be read aloud by
the prosecutor during the sentencing hearing. This recognises the
importance of victims, including family members and others who
suffered as a direct result of the offence, having a voice to
express the impact of the offence to the court if they so wish.
New subsection (12A) provides that if the person specified in the
request is available to do so during the sentencing hearing, the
Court must ensure that any admissible parts of the victim impact
statement that are requested, and which are appropriate and
relevant to sentencing, are read aloud or displayed by the person
or persons specified in the request in open court in the course of
the sentencing hearing. For example, a victim may request to
read one part of the statement themselves, and request that the
prosecutor read out the remaining parts. In that case, the victim
would need to be available during the sentencing hearing to
3
ensure the request could be exercised, as otherwise the Court's
general discretion on adjournments will apply.
New subsection (12B) provides that the Court may direct the
person or the person who he or she has chosen as to which
admissible parts of the victim impact statement are appropriate
and relevant to sentencing. This is in addition to the Court's
existing power under section 359(5) of the Act to rule as
inadmissible the whole or any part of a victim impact statement.
Clause 5 inserts new sections 359A and 359B after section 359 of the
Children, Youth and Families Act 2005 to provide that the
Court may direct that alternative arrangements be made for the
reading aloud of a victim impact statement under section 359,
or the giving of evidence under section 359(7) or 359(9).
These arrangements are similar to the arrangements for
vulnerable witnesses in section 360 of the Criminal Procedure
Act 2009. An application to make, vary or revoke a direction can
be made by the person who is to read aloud the statement or give
evidence, by the prosecutor, or by the court on its own motion.
These amendments recognise the potential vulnerability of
victims and witnesses in relation to victim impact statements.
Clause 6 amends section 617 of the Children, Youth and Families Act
2005 (section 617 is inserted by clause 46 of the Bill) to provide
a transitional provision. The transitional provision provides that
clauses 3, 4 and 5 of the Bill will apply to a sentencing hearing of
a child for an offence irrespective of when the offence was
committed, provided that the sentencing hearing commences
after those clauses come into operation.
Division 2
Division 2 of Part 2 of the Bill makes amendments to Division 1A of Part 6
of the Sentencing Act 1991 in relation to that Act's victim impact statement
provisions. Those provisions provide that if the Court finds a person guilty
of an offence, a victim of the offence may make a victim impact statement
to the Court for the purpose of assisting the Court in determining sentence.
The broad definition of victim in the Act means that victims may include
both the person against whom the crime was committed, and family members
and other persons who have suffered injury as a direct result of the offence.
The Bill's amendments arise from consideration of the recommendations in
the evaluation report titled "A Victim's Voice: Victim Impact Statements in
Victoria", published by the Victims Support Agency of the Department of
Justice, Victoria.
4
Clause 7 inserts new section 95B(1A) after section 95B(1) of the
Sentencing Act 1991, providing that a victim impact statement
may include photographs, drawings, poems and other materials
that relates to the impact of the offence on the victim or to any
injury, loss or damage suffered by the victim as a result of the
offence. The materials are not limited to materials produced by
the victims themselves. For example, a photograph or recording
of a deceased person may be included in a victim impact
statement to demonstrate the loss experienced to the family
member.
Clause 8 substitutes section 95F(1) of the Sentencing Act 1991 with new
subsections (1), (1A) and (1B) to expand the current provisions in
relation to reading aloud of victim impact statements.
New subsection (1) provides for a person who has made a victim
impact statement to request that any part of the statement is read
aloud or displayed by that person, or a person chosen by them
who is approved by the Court. The person may also request that
any other part of that statement be read aloud by the prosecutor
during the sentencing hearing. This recognises the importance of
victims, including family members and others who suffered as a
direct result of the offence, having a voice to express the impact
of the offence to the court if they so wish.
New subsection (1A) provides that if the person specified in the
request is available to do so during the sentencing hearing, the
Court must ensure that any admissible parts of the victim impact
statement that are requested, and which are appropriate and
relevant to sentencing, are read aloud or displayed by the person
or persons specified in the request in open court in the course of
the sentencing hearing. For example, a victim may request to
read one part of the statement themselves, and request that the
prosecutor read out the remaining parts. In that case, the victim
would need to be available during the sentencing hearing to
ensure the request could be exercised, as otherwise the Court's
general discretion on adjournments will apply.
New subsection (1B) provides that the Court may direct the
person or the person who he or she has chosen as to which
admissible parts of the victim impact statement are appropriate
and relevant to sentencing. This is in addition to the Court's
existing power under section 95B of the Act to rule as
inadmissible the whole or any part of a victim impact statement.
5
Clause 9 inserts new sections 95G and 95H after section 95F of the
Sentencing Act 1991 to provide that the Court may direct that
alternative arrangements be made for the reading aloud of a
victim impact statement under section 95F or the giving of
evidence under section 95D or 95E. These arrangements are
similar to the arrangements for vulnerable witnesses in
section 360 of the Criminal Procedure Act 2009.
An application to make, vary or revoke a direction can be made
by the person who is to read aloud the statement or give
evidence, by the prosecutor, or by the court on its own motion.
These amendments recognise the potential vulnerability of
victims and witnesses in relation to victim impact statements.
Clause 10 inserts new section 142 in the Sentencing Act 1991 to provide a
transitional provision. The transitional provision provides that
clauses 7, 8 and 9 of the Bill will apply to a sentencing hearing of
a person for an offence irrespective of when the offence was
committed, provided that the sentencing hearing commences
after those clauses come into operation.
Division 3
Division 3 of Part 1 of the Bill amends the Victims of Crime Assistance Act
1996 to enable the Chief Magistrate to delegate powers of the Victims of
Crime Assistance Tribunal to judicial registrars, and provide for a category of
reasonable safety-related expenses.
Clause 11 inserts a new definition of judicial registrar in section 3(1) of the
Victims of Crime Assistance Act 1996. The definition provides
that a judicial registrar has the same meaning as in the
Magistrates' Court Act 1989. That is, judicial registrar means a
judicial registrar of the court appointed under section 16C of the
Magistrates' Court Act 1989.
Clause 12 inserts a new section 8(2)(e) after section 8(2)(d) of the Victims
of Crime Assistance Act 1996, with consequential amendments
to section 8(2)(d) and section 8(4).
The new section 8(2)(e) provides for a specific type of assistance
amount, being safety-related expenses that are actually and
reasonably incurred, or reasonably likely to be incurred by the
primary victim as a direct result of an act of violence.
The Victims of Crime Assistance Tribunal currently makes
awards to primary victims for safety-related expenses under
section 8(3) which provides for certain "other expenses".
In order for an award to be made under section 8(3), "exceptional
circumstances" must be proven. The amendment provides for
6
awards of reasonable safety-related expenses without requiring
exceptional circumstances to be established, and facilitates the
Tribunal's existing discretion to make interim awards of this
nature where appropriate. The amendment ensures that more
timely assistance can be provided to the victim for expenses such
as relocation costs, security expenses, window and lock repairs,
and so on.
Clause 13 inserts a new section 24(3) in the Victims of Crime Assistance
Act 1996. New section 24(3) provides that the Chief Magistrate
can delegate to a judicial registrar any power conferred on the
Tribunal other than the power to review a final decision of the
Victims of Crime Assistance Tribunal or the delegation of power
to judicial registrars.
The purpose of the new section is to extend the model for judicial
registrars from the Magistrates' Court to the Victims of Crime
Assistance Tribunal, so that judicial registrars may be delegated
Tribunal powers as appropriate. This will enhance the Tribunal's
role as an accessible forum for victims, particularly where less
complex matters can be dealt with in a cost effective and efficient
manner without compromising the quality of the decision-making
process.
Clause 14 inserts a new section 59(1A) after section 59(1) of the Victims of
Crime Assistance Act 1996. The new section 59(1A) provides
that a person may not apply to the Victorian Civil and
Administrative Tribunal under section 59(1) for review of a final
decision if the final decision was made by a judicial registrar as a
delegate of the Victims of Crime Assistance Tribunal.
The purpose of the new subsection is to ensure that a person first
exercises their review rights under the new section 59A, inserted
by clause 15 of the Bill.
Clause 15 inserts a new section 59A after section 59 of the Victims of
Crime Assistance Act 1996. The new section 59A provides that
a person affected by a relevant decision can apply to the Victims
of Crime Assistance Tribunal for a review of a final decision of
the Tribunal made by a judicial registrar as a delegate of the
Tribunal. The relevant decisions listed in section 59A are the
same as those decisions for which a person can seek review to the
Victorian Civil and Administrative Tribunal under section 59.
They include refusing to make an award of assistance, the
determination of an amount of assistance, refusing to vary an
award, determining the amount of assistance on an application
for variation and a determination that a person is required to
make a refund and the amount of that refund.
7
New section 59A provides that a review under this section is to
be conducted as a hearing de novo. A hearing de novo is a fresh
consideration of the application for assistance. For clarity, a
legislative note refers to section 33 as containing the
circumstances in which the Victims of Crime Assistance Tribunal
may determine whether to conduct the review without a hearing.
The Chief Magistrate may make practice directions and rules
in relation to applications, practice and procedure under
section 59A, pursuant to the existing general power in section 57
and section 58 of the Victims of Crime Assistance Act 1996.
The purpose of the new section 59A is to provide a person who
has had their interests affected by the judicial registrar's decision
with the right to have the decision reviewed in the first instance
by the Victims of Crime Assistance Tribunal. This is similar to
the model for review of a judicial registrar's decision in the
Magistrates' Court.
Following a review under section 59A, the person retains the
right under section 59 of the Victims of Crime Assistance Act
1996 to apply to the Victorian Civil and Administrative Tribunal
to seek review of the final decision of the Tribunal made at the
review.
Clause 16 inserts new section 81 in the Victims of Crime Assistance Act
1996 to provide a transitional provision. The transitional
provision provides that the amendment in clause 12 will apply
to proceedings in the Tribunal occurring on or after the
commencement of that clause, irrespective of whether the
application was made to the Tribunal before or after that
commencement.
The purpose of this amendment is to ensure that the Tribunal has
power to consider an assistance award for reasonable safety
expenses pursuant to the amendments in clause 12, even if the
application was lodged before the commencement of clause 12
and has yet to be determined.
This is consistent with the general power of the Tribunal under
section 50(1)(c) of the Victims of Crime Assistance Act 1996 to
award assistance to an applicant if satisfied that the applicant is
eligible to receive the assistance.
8
PART 3--AMENDMENTS TO THE FAMILY VIOLENCE
PROTECTION ACT 2008 AND STALKING INTERVENTION
ORDERS ACT 2008
Division 1
Division 1 of Part 3 of the Bill makes technical and procedural amendments
to the Family Violence Protection Act 2008 to improve the family violence
protection system.
Clause 17 amends section 16 of the Family Violence Protection Act 2008
in relation to the search and seizure of objects.
Subclause (1) amends the heading in section 16 of the Family
Violence Protection Act 2008 to add a reference to the seizure
of objects.
Subclause (2) inserts new subsections (2A) and (2B) after
section 16(2) of the Family Violence Protection Act 2008.
Section 16 provides for the search of a person in certain
circumstances if a police officer has given the person a direction,
or apprehended and detained the person, under Division 1 of the
Family Violence Protection Act 2008.
New subsection (2A)(a) provides that, in relation to objects that
may cause injury or damage or be used to escape, the police
officer may direct the surrender and seizure of firearms, weapons
and ammunition under section 158 of the Family Violence
Protection Act 2008. In relation to other objects, the police
officer may seize the object under new subsection (2A)(b).
New subsection (2B) provides that an object seized under new
subsection (2A)(b) must be returned to the person when the
direction ends or the authorisation for detention ends unless the
object is required as evidence in further proceedings under the
Family Violence Protection Act 2008 or another Act.
The purpose of these amendments is to clarify the seizure powers
of police officers when conducting searches.
Clause 18 amends section 53 of the Family Violence Protection Act 2008
to clarify the court's power to make orders by consent, the
requirements for consideration of the protection of children, and
to make orders on the court's own initiative in relation to children
who have been subjected to family violence by the respondent.
Subclause (1) amends section 53(1)(a)(iii) of the Family
Violence Protection Act 2008 to clarify that the power to protect
a child from family violence under an interim order applies
whether or not the child is an affected family member.
9
The definition of affected family member in the Act includes
a person subject to an application.
Subclause (2) inserts new subsections (1A), (1B) and (1C) in
section 53 of the Family Violence Protection Act 2008.
New subsections (1A) and (1B) are adapted from similar
provisions in section 77 of the Act in relation to final orders.
The amendments require the court, before making an interim
order, to take the same approach as in section 77 and consider
whether there are any children who have been subjected to family
violence by the respondent. If making an order to protect a child
under subsection (1)(a)(iii), the court may include the child as a
protected person on the same order as the affected family
member, or make a separate interim order for the child.
New subsection (1C) clarifies that orders by consent do not
require the court to be satisfied as to any matter in subsection
(1)(a) or (1)(c), and may be made whether or not the respondent
admits to any or all of the particulars of the application. This is
adapted from a similar provision in section 78 of the Act.
Clause 19 amends section 55 of the Family Violence Protection Act 2008
in relation to evidentiary requirements for making interim orders.
Subclause (1) substitutes a new heading for section 55 to describe
the section as amended.
Subclause (2) inserts a new paragraph (c) in subsection (1), with
consequential amendments to paragraph (b), to refer to an
application made by the issue of a family violence safety notice
that was certified in accordance with section 153(1).
Subclause (3) amends section 55(2) to insert a reference to new
subsection (3), to extend the safeguard against requiring an
affected family member to give evidence to the new
subsection (3).
Subclause (4) inserts a new subsection (3), so that if an
application is made by issuing a certified family violence safety
notice, the court must consider the reasonable practicality of
obtaining oral evidence or affidavit evidence if it is considering
whether to exercise its general discretion under section 65(3) to
exclude unsafe evidence.
The purpose of these amendments is to include a certified family
violence safety notice as evidence that may support an
application for an interim order. The existing requirements of
either oral or affidavit evidence under section 55(1)(a) of the
Family Violence Protection Act 2008 have created difficulties
and inefficiencies in the family violence protection scheme,
particularly if neither the police applicant nor the protected
10
person is present or available at the first mention.
The certification process, performed by the police applicant with
significant penalties of 120 penalty units for a false statement,
provides for a robust form of evidence for the purposes of an
interim intervention order. While certified family violence safety
notices will generally be sufficient evidence for the making of an
interim order, the amendment includes provision that a deficient
family violence safety notice should lead to consideration of
whether oral evidence or affidavit evidence is reasonably
practically available.
Clause 20 amends section 57 of the Family Violence Protection Act 2008
in relation to the explanations provided by registrars to
respondents and affected family members following the making
of an interim order.
Subclause (1) substitutes subsection (1)(c) with a new subsection
so that the written explanation accurately describes when the
interim order expires under the Family Violence Protection Act
2008 (section 60 of that Act provides for when interim orders
expire).
Subclause (2) inserts new subsection (2A) which qualifies the
current requirement in section 57(2) to also provide an oral
explanation. The new subsection provides that the registrar is
not required to provide the oral explanation if satisfied that the
magistrate has already provided that explanation.
Clause 21 inserts a new Division 3A in Part 4 of the Family Violence
Protection Act 2008, relating to the use of assessment reports in
proceedings relating to family violence intervention orders in the
Children's Court. The purpose of these amendments are 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.
New section 73A gives the Children's Court the power to order
an assessment for a respondent or affected family member.
Section 73A(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.
New subsection 73B 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.
11
New subsection 73C 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.
New section 73D provides for when the person who is the subject
of the report disputes a matter in an assessment report.
Subsection (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. Subsection (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 into consideration unless the person subject to the
report consents to the report or part in dispute being admitted as
evidence.
New section 73E 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.
New section 73F 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.
New section 73G 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. Subsection (2) provides that the notice must be in
writing and comply with filing requirements. Subsection (3)
states that the registrar must immediately notify the author of the
report of the requirement to attend court. Subsection (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.
Subsection (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.
12
New subsection 73H provides for the confidentiality of
assessment reports. Subsection (1) provides that the court may
impose conditions regarding who can access the report.
Subsection (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. Subsection (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.
Clause 22 amends section 78 of the Family Violence Protection Act 2008.
Section 78 gives the court the power to make orders by consent
where the court has not heard evidence. The amendments ensure
that a consent procedure applies to variations, revocations or
extensions, subject to special provisions in relation to children.
Subclause (1) substitutes sections 78(1) and 78(2), providing that
if the parties to a proceeding for a final order or the variation,
extension or revocation of a final order consent or do not oppose
the order being made, the order can be made without the court
being satisfied of the matters in the specified sections, or the
respondent admitting to the particulars of the application.
Substituted section 78(2) specifies the matters the court must be
satisfied about if the respondent is a child, and the parties to the
proceedings either consent or do not oppose making a final order
or an order revoking, varying or extending a final order.
As section 78 now applies to variations, revocations or
extensions, subclauses (2) to (4) insert references to this in
subsections (3), (4) and (5).
Subclause (5) inserts subsection (7), providing that sections 102,
103, 104 and 105 of the Act, which provide additional
protections for varying or revoking an order, continue to apply
in relation to any children of the affected family member or the
respondent whether or not the court makes an order under
section 78(1).
Clause 23 substitutes the words "will jeopardise" with the words "will or
may jeopardise" in section 91 of the Family Violence Protection
Act 2008. The substituted wording means that if the court
decides to make a family violence intervention order and the
protected person or respondent is the parent of a child, the court
has to decide whether it will or may jeopardise the safety of the
13
protected person or child if the child was to live with or have
contact with the respondent.
The word "may" has been included to ensure there is consistency
with the powers exercised in section 93 of the Family Violence
Protection Act 2008 which concern the conditions for allowing
contact or prohibiting contact with a child. The amendment does
not change the substantive powers of the court.
Clause 24 amends section 92 of the Family Violence Protection Act 2008
by inserting new subsection (4). Section 92 applies if the court is
satisfied that the safety of the protected person or relevant child
will not be jeopardised by the child having contact with the
respondent. Section 92(1) requires an order to include a
condition that agreed child contact arrangements be in writing,
and a condition for the safe handover of a child.
These requirements may not be necessary or practical if the
respondent, protected person and child continue living together.
The new sub-section provides that the court does not have to
include the conditions where the protected person, any child of
the protected person and the respondent live together.
Clause 25 amends the reference in section 100(1)(b) of the Family
Violence Protection Act 2008 to refer to section 53(1)(a)(iii).
The amendment ensures that courts can vary, without an
application, an interim order made under section 53(1)(a)(iii) on
the court's own initiative.
Clause 26 inserts a new note at the foot of section 101(2) of the Family
Violence Protection Act 2008. The note states that Division 1
applies to applications for variations, revocations or extensions of
family violence intervention orders, and refers to the definition of
family violence intervention order in section 11 of the Family
Violence Protection Act 2008.
Section 101 of the Act provides that if an application for
variation of an intervention order is made, the court may make an
interim variation of the order. For these purposes, the section
provides that Division 2 of the Act applies to the making of the
interim variation order (with any necessary changes).
The provision was intended to ensure that procedures that relate
to interim orders also relate to interim variations.
Some proceedings in the court have proceeded on the basis that,
because section 101 does not refer to Division 1, the court can
not apply Division 1 (for example, the Division 1 provision for
making interim orders after hours).
14
The note clarifies that the processes and procedures set out in
Division 1 apply to applications under the Act for variations,
revocations or extensions of family violence intervention orders,
including interim variation orders (given the definition of family
violence intervention order). For example, this means that the
remote application process set out in section 44 of the Family
Violence Protection Act 2008 can be used for interim variations.
Clause 27 replaces the words "for section 77(2)" in section 105(2) of the
Family Violence Protection Act 2008 with the words "section
53(1)(a)(iii) or 77(2)". This ensures that references to orders
made on the court's own initiative include such orders which are
made under section 53(1)(a)(iii), and is a consequential
amendment following the amendment to section 100 of the Act
by clause 25 of the Bill.
Clause 28 substitutes section 107 of the Family Violence Protection Act
2008 with a new section 107, to amend the provisions for
"interim extension orders".
Subsection (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).
Subsection (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.
Subsection (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.
Subsection (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 107(4)(a) to (e)
occur.
The amendments ensure 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.
15
Clause 29 substitutes section 122(1) in the Family Violence Protection Act
2008. New section 122(1) continues to provide that a relevant
person can apply for a rehearing if the application for the order
was not personally served on the respondent and was not brought
to the respondent's attention under an order for substituted
service.
However, the section now also provides that a person can apply
for leave for a rehearing if there are exceptional circumstances
and a rehearing is fair and just in the circumstances of the case.
For example, this amendment 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.
Clause 30 substitutes the words "particular premises or vehicle" in section
160(1) of the Family Violence Protection Act 2008 with
"particular premises (including any vehicle on or in those
premises) or a particular vehicle located in a public place".
Section 160(2) of the Family Violence Protection Act 2008
provides for a warrant to be used that authorises the police
officer to enter and search the vehicle described in the warrant.
This would not appear to authorise entry to any private property
where the vehicle may be located.
The purpose of substituting the wording in section 160(1) is to
clarify, for the avoidance of doubt, that if a police officer obtains
a warrant to search premises this will also include the power to
search vehicles on those premises and a separate warrant for the
vehicle is not required.
Clause 31 amends section 161 of the Family Violence Protection Act
2008. Subclause (1) substitutes a new section 161(1), providing
that before executing a search warrant, the police officer named
in the warrant or person assisting must announce they are
authorised to enter the premises, or vehicle located in a public
place, and give the person at the premises or in the vehicle an
opportunity to allow entry.
Subclauses (2) and (3) insert the words "or vehicle" and "or a
vehicle" after the word "premises" in subsection (2) and (3).
Subclause (4) inserts a new subsection (4) which provides that
the authority given in section 161(3) is in addition to any
authority given by section 78(1)(b) of the Magistrates' Court
Act 1989. Section 78(1)(b) of the Magistrates' Court Act 1989
provides a power to break, enter and search a place or vehicle
named in a warrant.
16
The current provisions in section 161 of the Family Violence
Protection Act 2008 only apply to premises and not vehicles.
The amendments to section 161 are consistent with uniform
statutory obligations that have been created for premises and
vehicles.
Clause 32 inserts a new subsection 162(2) at the end of section 162 of the
Family Violence Protection Act 2008. The new subsection
162(2) provides that if a person is in charge of a vehicle in a
public place when a search warrant is executed, the police officer
must identify themself as a police officer and give the person a
copy of the execution copy of the warrant.
The current provisions in section 162 of the Family Violence
Protection Act 2008 only apply to premises and not vehicles.
The amendments to section 162 are consistent with uniform
statutory obligations that have been created for premises and
vehicles.
Clause 33 inserts a new section 171A after section 171 of the Family
Violence Protection Act 2008.
Subsection (1) states that any number of applications for family
violence intervention orders may be heard with any number of
applications under the Stalking Intervention Orders Act 2008
if the court considers the applications are sufficiently related and
it is appropriate for them to be heard together.
Subsection (2) provides that a decision to hear applications for
family violence and stalking intervention orders together may be
made by the applicants or respondents or on the court's own
initiative if the court considers it is in the interest of justice.
Subsection (3) provides that stalking intervention order means
an intervention order within the meaning of the Stalking
Intervention Orders Act 2008.
Section 63 of the Family Violence Protection Act 2008 provides
for related family violence intervention order applications to be
held at the same time. Section 171A adds a complementary
provision in relation to also hearing applications under the
Stalking Intervention Order Act 2008 at the same time as
applications, as the matters are often related.
17
Clause 34 inserts the word "or respondent" after "protected person" in
section 173(2) of the Family Violence Protection Act 2008.
In relation to child protection proceedings, section 173(2) of the
Act allows the Children's Court to vary an intervention order of
its own motion for consistency with a child protection order if the
child is the protected person, but not if the child is the
respondent. The amendment gives the Children's Court the
power to revoke or vary a family violence intervention order
where a child is either a respondent or a protected person.
Clause 35 substitutes the words "section 53(1)(a)(iii), 77(2)" for "section
77(2)" in section 201(c)(iv) of the Family Violence Protection
Act 2008. This extends the provision to apply to interim orders
made under section 53(1)(a)(iii) on the court's own initiative.
Clause 36 is a statute law revision, correcting "exclusion order" to
"exclusion condition" in section 83(5) of the Family Violence
Protection Act 2008.
Clause 37 inserts a new Division 5 of Part 14 after Division 4 of Part 14
in the Family Violence Protection Act 2008 to provide for
transitional provisions. The new Division includes one
section (224B).
New section 224B(1) provides that despite the commencement of
clause 28, which amended section 107 in relation to interim
extension orders, section 107 of the Act as in force before that
commencement continues to apply to an order made under
section 107 before the commencement.
New subsection 224B(3) states that despite the commencement
of clause 29 which relates to seeking a rehearing, section 122 as
in force before that commencement continues to apply in respect
of applications for rehearing that were made but not determined
before commencement.
New subsection 224B(4) provides that the new section 171A
(inserted by clause 33), which concerns hearing family violence
intervention orders and stalking intervention order applications at
the same time, does not apply to a hearing that commenced
before clause 33 commenced and that--
· continued on or after that day; or
· was adjourned until that day or a day after the day.
18
Division 2--Amendments to the Stalking Intervention Orders
Act 2008
Division 2 makes certain amendments to the Stalking Intervention Orders
Act 2008 to maintain procedural alignment with the Family Violence
Prevention Act 2008 with respect to those matters.
Clause 38 substitutes the words "particular premises or vehicle in section
37(1) of the Stalking Intervention Orders Act 2008 with
"particular premises (including any vehicle on or in those
premises) or a particular vehicle located in a public place".
Section 37(1) provides for a warrant to be used that authorises the
police officer to enter and search the vehicle described in the
warrant. This would not appear to authorise entry to any private
property where the vehicle may be located.
The purpose of substituting the wording in section 37(1) is to
clarify, for the avoidance of doubt, that if a police officer obtains
a warrant to search premises this will also include the power to
search vehicles on those premises and a separate warrant for the
vehicle is not required.
The amendment is consistent with the changes made by this Bill
to section 160 of the Family Violence Protection Act 2008.
Clause 39 amends section 38 of Stalking Intervention Orders Act 2008.
Subclause (1) substitutes a new section 38(1), providing that
before executing a search warrant, the police officer named in the
warrant or person assisting must announce they are authorised to
enter the premises, or vehicle located in a public place, and give
the person at the premises or in the vehicle an opportunity to
allow entry
Subclauses (2) and (3) insert the words "or vehicle" and "or a
vehicle" after the word "premises" in subsection (2) and (3).
Subclause (4) inserts a new subsection (4) which provides that
the authority given in subsection(3) is in addition to any authority
given by section 78(1)(b) of the Magistrates' Court Act 1989.
Section 78(1)(b) of the Magistrates' Court Act 1989 provides a
power to break, enter and search a place or vehicle named in a
warrant.
The current provisions in section 38 only apply to premises and
not vehicles. The amendments to section 38 are consistent with
uniform statutory obligations that have been created for premises
and vehicles.
19
The amendment is consistent with the changes made by this Bill
to section 161 of the Family Violence Protection Act 2008.
Clause 40 inserts a new subsection (2) at the end of section 39 of the
Stalking Intervention Orders Act 2008. The new subsection
39(2) provides that if a person is in charge of a vehicle in a public
place when a search warrant is executed, the police officer must
identify themself as a police officer and give the person a copy of
the execution copy of the warrant.
The current provisions in section 39 only apply to premises and
not vehicles. The amendments to section 39 are consistent with
uniform statutory obligations that have been created for premises
and vehicles.
The amendment is consistent with the changes made by this Bill
to section 162 of the Family Violence Protection Act 2008.
PART 4--INFRINGEMENT NOTICES SERVED ON
CHILDREN
Part 4 of the Bill amends the Children, Youth and Families Act 2005 with
respect to the Children and Young Persons Infringement Notice System and
makes similar amendments to the Infringements Act 2006 with respect to
the commencement of proceedings in the Children's Court.
Division 1
Division 1 amends the Infringements Act 2006.
Clause 41 amends section 40(4) of the Infringements Act 2006.
Section 40(4) disapplies section 40 and provides that the
Children, Youth and Families Act 2005 applies to infringement
offences alleged to have been committed by a child. Clause 42
inserts the words "subject to section 40AA". Section 40AA is a
new section inserted by this Bill which provides an extended time
limit for commencing criminal proceedings in the Children's
Court for infringement matters in certain circumstances.
Clause 42 inserts new section 40AA after section 40 of the Infringements
Act 2006.
New section 40AA(1) provides that if a child elects under Part 2
to have an infringement matter that is a summary offence
determined by the Children's Court or if an enforcement agency
withdraws an infringement notice in respect of a summary
offence for the matter to be dealt with in the Children's Court,
then a charge-sheet may be filed--
20
· within six months of the child's election or withdrawal
of the infringement notice by the enforcement agency;
or
· within 12 months of the alleged offence--
whichever is the earlier of the two dates.
Section 344A of the Children, Youth and Families Act 2005
provides that a proceeding for a summary offence must be
commenced against a child in the Children's Court within six
months of the alleged offence. New section 40AA of the
Infringements Act 2006 operates as an exception to
section 344A of the Children, Youth and Families Act 2005.
The exception to section 344A of the Children, Youth and
Families Act 2005 recognises that where a child initially enters a
payment plan or applies for an internal review, the process may
take longer than six months. As such, an extension of time is
necessary to file a charge-sheet in the Children's Court.
However, a charge-sheet may not be filed later than 12 months
after the alleged offence which is consistent with current practice
in relation to summary offences.
A similar exception can be found in new Part 4 of Schedule 3 to
the Children, Youth and Families Act 2005 in circumstances
where an infringement matter for a child is registered under the
Children and Young Persons Infringement Notice System
(CAYPINS) or a nomination has occurred for a road traffic
offence.
Clause 43 amends section 53(2) of the Infringements Act 2006 by
inserting "section 344A of the Children, Youth and Families
Act 2005" after "Criminal Procedure Act 2009". Section 53(1)
provides an extension of time to commence proceedings in the
Children's Court where a person is on a payment plan. The
amendment to section 53(2) ensures that an enforcement agency
is not bound by the six month time limit to commence
proceedings in section 344A of the Children, Youth and
Families Act 2005.
Clause 44 inserts new section 211 in the Infringements Act 2006 which
provides a transitional provision for the amendments made by
Division 1 of Part 4 of the Bill.
The transitional provision provides that the Infringements Act
2006 as amended by Division 1 of Part 4 applies to an
infringement offence alleged to have been committed--
21
· on or after the commencement of Division 1 of Part 4;
or
· on or after 1 January 2010 and not more than six months
before the commencement of Division 1 of Part 4.
The transitional provision extends the time within which a
proceeding may be commenced under new section 40AA or
section 53 of the Infringements Act 2006 for an infringement
offence, but it does not apply where the offence is alleged to have
been committed more than six months before the commencement
of Division 1 of Part 4. As a result, the Bill does not permit an
extension of time to commence a proceeding where the time for
commencing a proceeding has already expired under section
344A of the Children, Youth and Families Act 2005. Part 4
therefore does not apply retrospectively.
Division 2
Division 2 amends the Children, Youth and Families Act 2005.
Clause 45 inserts a Note at the foot of section 344A of the Children, Youth
and Families Act 2005 indicating that section 40AA and
section 53 of the Infringements Act 2006 and Part 4 of
Schedule 3 to the Children, Youth and Families Act 2005 each
provide an extension of time for commencing proceedings in
certain circumstances where an infringement notice has been
issued.
Clause 46 inserts new section 617 in the Children, Youth and Families
Act 2005. New section 617 is a transitional provision for the
amendments made by Division 2 of Part 4 of the Bill.
The transitional provision provides that the Children, Youth and
Families Act 2005 as amended by Division 2 of Part 4 applies to
a summary offence alleged to have been committed--
· on or after the commencement of Division 2 of Part 4;
or
· on or after 1 January 2010 and not more than six months
before the commencement of Division 2 of Part 4.
The transitional provision extends the time within which a
proceeding may be commenced under new Part 4 of Schedule 3
to the Children, Youth and Families Act 2005 for an
infringement offence but it does not apply where the offence is
alleged to have been committed more than six months before the
commencement of Division 2 of Part 4. As a result, the Bill does
not permit an extension of time to commence a proceeding where
22
the time for commencing a proceeding has already expired under
section 344A of the Children, Youth and Families Act 2005.
Part 4 therefore does not apply retrospectively.
Clause 47 inserts new Part 4 in Schedule 3 to the Children, Youth and
Families Act 2005, concerning when there may be an extension
of time for commencing certain proceedings.
New clause 17(1)(a) in new Part 4 refers to the 6 month time
limit for commencing a proceeding for a summary offence in
section 344A of the Children, Youth and Families Act 2005.
New clause 17(1)(b) refers to new section 40AA and section 53
of the Infringements Act 2006, each of which provides for an
extension of time for infringement matters dealt with under Part 2
or Part 3 of the Infringements Act 2006.
New clause 17(1)(c) provides an extension of time to commence
proceedings where the registration of an infringement notice
under CAYPINS is cancelled under clause 6(5)(b) or 8(3)(a) of
Schedule 3 to the Children, Youth and Families Act 2005.
New clause 17(1)(d) provides that where a second infringement
notice is served on a child after the first infringement notice is
cancelled under Part 3 of Schedule 3 (due to the child being
unaware of the infringement notice), the time limit for
commencing proceedings against the child is six months after the
first infringement notice was cancelled or 12 months after the
alleged offence, whichever is the earlier. Time does not start
running anew because a second infringement notice is served on
the child.
New clause 17(1)(e) to 17(1)(h) relate to infringement matters
under the Road Safety Act 1986, the Melbourne City Link Act
1995 and the EastLink Project Act 2004, where a nomination
has taken place (for example, where a person receives an
infringement notice but nominates another driver of the vehicle in
question).
New clause 17(2) provides that clause 17(1) operates as an
exception to the six month time limit in new section 344A of the
Children, Youth and Families Act 2005. The exception
recognises that in the circumstances listed in new clause 17(1)(b)
to 17(1)(h) the processes may take longer than six months.
As such, an extension of time is necessary to file a charge-sheet
in the Children's Court. However, a charge-sheet may not be
filed later than 12 months after the alleged offence, which is
consistent with current practice.
23
PART 5--PROVISIONS RELATED TO LIQUOR AND
DISORDERLY CONDUCT
Division 1
Division 1 of Part 5 of the Bill makes amendments to the Liquor Control
Reform Act 1998 to increase the infringement penalty amount for the alleged
offence of a person who is drunk, violent or quarrelsome that refuses or fails
to leave licensed premises if requested to do so by a licensee or permittee or a
member of the police force. Division 1 also amends the Liquor Control
Reform Act 1998 to increase the maximum period of operation of banning
notices under section 148B from 24 to 72 hours.
Clause 48 inserts new subsection (5) into section 144 of the Liquor
Control Reform Act 1998 to provide that, despite subsection (1)
which provides that the general infringement amount for offences
is one tenth of the maximum penalty, the infringement penalty
for an offence against section 114(2) of the Act is 4 penalty units.
Section 114(2) provides that a person who is drunk, violent or
quarrelsome must not refuse or fail to leave licensed premises if
requested to do so by a licensee or permittee or a member of the
police force. The offence carries a maximum penalty of 20
penalty units, and the Bill is therefore doubling the infringement
penalty for this offence.
Clause 49 substitutes "72 hours" for the existing "24 hours" in section
148B(2) of the Liquor Control Reform Act 1998 to increase the
maximum period of operation of banning notices under that
section.
The Liquor Control Reform Amendment Act 2007 inserted
Part 8A into the Liquor Control Reform Act 1998 to make
provision for banning notices and exclusion orders.
Under section 148B of the Liquor Control Reform Act 1998,
a banning notice may be issued to a person by a relevant police
member who suspects on reasonable grounds that the person is
committing or has committed a specified offence wholly or partly
in an area which has been declared by the Director of Liquor
Licensing as a designated area under section 147.
A banning notice bans the person from the designated area or all
licensed premises in the designated area for the period specified
in the notice. At present, under section 148B(2), the period
specified in the banning notice must not exceed 24 hours starting
from the time the notice is given to the person to whom it applies.
24
The Bill, therefore, extends the maximum possible period of
operation of a banning notice to 72 hours. The Bill does not,
however, alter any other aspect of the banning notice scheme
under Part 8A of the Liquor Control Reform Act 1998.
Division 2
Division 2 of Part 5 of the Bill makes amendments to the Summary
Offences Act 1966 to increase certain maximum penalties and the
infringement penalties for particular offences under the Act that are related to
public drunkenness and unlawful behaviour in public places.
Clause 50 substitutes "8 penalty units" for the existing "4 penalty units" in
section 13 of the Summary Offences Act 1966. Section 13 of
that Act is the offence of a person being found drunk in a public
place. Clause 50 of the Bill, in conjunction with clause 53, will
have the effect that a person who is drunk in a public place is
guilty of an offence which will carry a maximum penalty of
8 penalty units with the infringement penalty amount for the
offence being 4 penalty units.
Clause 51 substitutes "10 penalty units" for "5 penalty units", where this is
twice occurring, in section 14 of the Summary Offences Act
1966 in respect of both a first offence and a second or subsequent
offence. Section 14 is the offence of persons being found drunk
and disorderly in a public place. Clause 51, in conjunction with
clause 53, will have the effect that a person who is drunk and
disorderly in a public place is guilty of an offence which will
carry a maximum penalty of 10 penalty units with the
infringement penalty amount for the offence being 4 penalty
units.
Clause 52 substitutes "10 penalty units" for the existing "5 penalty units" in
section 17A of the Summary Offences Act 1966. Section 17A
of that Act is the offence of a person behaving in a disorderly
manner in a public place. Clause 52 of the Bill, in conjunction
with clause 53, will have the effect that a person who is behaving
in a disorderly manner in a public place is guilty of an offence
which will carry a maximum penalty of 10 penalty units with the
infringement penalty amount for the offence being 4 penalty
units.
Clause 53 substitutes new sections 60AB(2), (3) and (4) of the Summary
Offences Act 1966 for the existing sections 60AB(2) and (3) to
provide for an increase in the infringement penalty amounts for
the offences of being drunk in a public place under section 13,
being drunk and disorderly in a public place under section 14,
behaving in a disorderly manner under section 17A and behaving
25
in a riotous, indecent, offensive or insulting manner under section
17(1)(d) of the Act.
Section 60AB(1) of the Summary Offences Act 1966 limits the
amount payable for an alleged offence for which an infringement
notice may be served under the Act to 1 penalty unit. This is
subject to the exceptions in subsections (2) and (3) at present and
subsections (2), (3) and (4), as substituted by the Bill.
Substituted section 60AB(2)(a) provides that, despite subsection
(1), the infringement penalty for an alleged offence against
section 9(1)(c) (the offence of wilful damage under the value of
$5000) and section 17(1)(c) (the offence of using profane,
indecent or obscene language or threatening, abusive or insulting
words) is 2 penalty units. The infringement penalty for these two
offences has not been altered by the Bill.
Substituted section 60AB(2)(b) provides that, despite subsection
(1), the infringement penalty for an alleged offence against
section 17(1)(d), the offence of behaving in a riotous, indecent,
offensive or insulting manner, is 4 penalty units. This represents
a doubling of the infringement penalty amount for this offence.
Section 60AB(2) has been split into two categories in this way to
maintain the infringement penalty amount for the paragraph (a)
offences and increase the penalty amount for the paragraph (b)
offence. The three offences remain within the one provision,
which is necessary because each of the three offences is included
in a trial expansion of the infringements system, with the power
to serve infringement notices and the provisions regarding the
infringement penalty amounts for these offences being subject to
a sunset provision in the Infringements and Other Acts
Amendment Act 2008. To give effect to the trial period, section
11(2)(c) of the Infringements and Other Acts Amendment Act
2008 provides for the repeal of section 60AB(2) of the Summary
Offences Act 1966 on a date to be proclaimed or, at the latest,
1 July 2011. The Bill, therefore, increases the infringement
penalty amount for an alleged offence against section 17(1)(d)
whilst ensuring that the offence continues to be included in the
trial expansion of the infringements system.
Substituted new section 60AB(3) of the Summary Offences Act
1966 provides that the infringement penalty for an alleged
offence against section 6 of the Act for which an infringement
notice may be served is 2 penalty units. Section 6 of the Act is
the offence of contravening a direction to move on. The Bill
makes no alteration to the infringement penalty amount for this
offence.
26
Substituted new section 60AB(4) of the Summary Offences
Act 1966 provides that the infringement penalty for an alleged
offence against section 13, 14 or 17A of the Act, for which an
infringement notice may be served, is 4 penalty units.
The infringement penalty amounts for each of these offences
(being found drunk in a public place, being found drunk and
disorderly in a public place and behaving in a disorderly manner
in a public place) is therefore increased by the Bill from 2 to
4 penalty units.
PART 6--REPEAL OF AMENDING ACT
Clause 54 provides for the repeal of this amending Act on 1 January 2012.
A legislative note is included to the effect that this repeal does
not affect the continuing operation of the amendments made (see
section 15(1) of the Interpretation of Legislation Act 1984).
27