2004

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

Part 1.1 Bail Act 1992 21

Part 1.2 Children and Young People Act 1999 23

Part 1.3 Crimes Act 1900 25

Part 1.4 Crimes (Restorative Justice) Act 2004 26

Part 1.5 Dangerous Substances Act 2004 27

Part 1.6 Domestic Violence Agencies Act 1986 27

Part 1.7 Evidence (Miscellaneous Provisions) Act 1991 28

Part 1.8 Firearms Act 1996 28

Part 1.9 Health Records (Privacy and Access) Act 1997 30

Part 1.10 Magistrates Court Act 1930 30

Part 1.11 Prohibited Weapons Regulations 1997 31

Part 1.12 Protection Orders Regulations 2002 31

Part 1.13 Rehabilitation of Offenders (Interim) Act 2001 32

2004

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

An Act to amend the Protection Orders Act 2001, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Domestic Violence and Protection Orders Amendment Act 2004.

This Act commences on the day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

This Act amends the Protection Orders Act 2001.

Note This Act also amends other legislation (see sch 1).

substitute

This Act is the Domestic Violence and Protection Orders Act 2001.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

(b) to facilitate the safety and protection of people who fear or experience violence by—

(i) providing a legally enforceable mechanism to prevent violent conduct; and

(ii) allowing for the resolution of conflict without the need to resort to arbitration.

(1) In deciding an application for a protection order, the paramount consideration is—

(a) for a domestic violence order—the need to ensure that the aggrieved person, and any child at risk of exposure to domestic violence, is protected from domestic violence; and

(b) for a personal violence order—the need to ensure that the aggrieved person is protected from personal violence; and

(c) for a workplace order—the need to ensure that employees and other people at the workplace are protected from personal violence in the workplace.

(1) For this Act, a person’s conduct is domestic violence if it—

(a) causes physical or personal injury to a relevant person; or

(b) causes damage to the property of a relevant person; or

(c) is directed at a relevant person and is a domestic violence offence; or

(d) is a threat, made to a relevant person, to do anything in relation to the relevant person or another relevant person that, if done, would fall under paragraph (a), (b) or (c); or

(e) is harassing or offensive to a relevant person; or

(f) is directed at a pet of a relevant person and is an animal violence offence; or

(g) is a threat, made to a relevant person, to do anything to a pet of the person or another relevant person that, if done, would be an animal violence offence.

Note Relevant person—see dict.

(2) In this Act:

animal violence offence means an offence against any of the following provisions of the Animal Welfare Act 1992:

(a) section 7 (Cruelty);

(b) section 8 (Pain);

(c) section 12 (Administering poison);

(d) section 12A (Laying poison);

(e) section 13 (which is about administering an electric shock to an animal).

domestic violence offence means an offence against—

(a) section 34 (which is about contravening protection orders); or

(b) a provision of the Crimes Act 1900 mentioned in schedule 1 (which deals with domestic violence crimes); or

(c) any of the following provisions of the Criminal Code:

(i) section 311 (Burglary);

(ii) section 403, 404, 405, 406, 407 or 408 (which deal with property offences); or

(d) any of the following provisions of the Road Transport (Safety and Traffic Management) Act 1999:

(i) section 6 (1) (which is about negligent driving);

(ii) section 7 (1) (which is about furious, reckless or dangerous driving);

(iii) section 8 (1) or (2) (which is about menacing driving); or

(e) any of the following provisions of the Firearms Act 1996:

(i) section 53 (Unregistered firearms);

(ii) section 80 or section 81 (which are about discharge of firearms or possession endangering life).

Note A reference to an offence against a Territory law includes a reference to a related ancillary offence, eg attempt (see Legislation Act, s 189).

(3) In this section:

offence includes conduct, wherever engaged in, that would be an offence if it were engaged in within the ACT.

personal injury includes nervous shock.

For this Act, a relative of a person (the original person)—

(a) means the original person’s—

(i) father, mother, grandfather, grandmother, stepfather, stepmother, father-in-law or mother-in-law; or

(ii) son, daughter, grandson, granddaughter, stepson, stepdaughter, son-in-law or daughter-in-law; or

(iii) brother, sister, half-brother, half-sister, stepbrother, stepsister, brother-in-law or sister-in-law; or

(iv) uncle, aunt, uncle-in-law or aunt-in-law; or

(v) nephew, niece or cousin; and

(b) if the original person has or had a domestic partner (other than a spouse)—includes someone who would have been a relative of a kind mentioned in paragraph (a) if the original person had been legally married to the domestic partner; and

(c) includes—

(i) someone who has been a relative of a kind mentioned in paragraph (a) or (b) of the original person; and

(ii) anyone else who could reasonably be considered to be a relative of the original person.

1 if the original person is an Aboriginal or Torres Strait Islander, the following people:

(a) a person the original person has responsibility for, or an interest in, in accordance with the traditions and customs of the original person’s Aboriginal or Torres Strait Islander community;

(b) a person who has responsibility for, or an interest in, the original person in accordance with the traditions and customs of the original person’s Aboriginal or Torres Strait Islander community.

2 a person regarded and treated by the original person as a relative, for example, as an uncle or aunt

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) An aggrieved person with a legal disability may only apply for a protection order by a next friend.

Note 1 The Macquarie Dictionary (1997) defines next friend as a person bringing action in a court of law on behalf of a minor or person of unsound mind.

Note 2 The regulations may prescribe how a next friend may be appointed (see s 106 (3) (b) (i)).

(2) However, if the aggrieved person is a child, the aggrieved person may—

(a) apply for a domestic violence protection order in the person’s own right; or

(b) apply for another protection order in the person’s own right with the leave of the Magistrates Court.

(3) Also, an aggrieved person with a legal disability (other than a child) may apply for any protection order in the person’s own right with the leave of the Magistrates Court.

(4) The Magistrates Court must give leave for an application under subsection (2) (b) or (3) if satisfied that the aggrieved person—

(a) understands the consequences of applying for a protection order; and

(b) will understand the proceeding on the application.

If, at any time during the preliminary conference for an application for a protection order, the registrar is satisfied that the application is likely to be more effectively resolved by mediation than by a hearing, the registrar must—

(a) recommend to the parties to the application that they seek mediation; and

(b) give the parties information about mediation; and

(c) adjourn the preliminary conference until a stated date to allow for mediation to happen.

commit an offence.

commit an offence; and

(e) that the order may be registered and enforced in a State, another Territory or New Zealand.

Note The Criminal Code, pt 2.4 deals with offences of aiding and abetting.

(1) An application for amendment or revocation of a protection order (the original order) must not be made by the respondent to the original order without the leave of the Magistrates Court.

(2) Before hearing the application for leave, the Magistrates Court must fix a time to hear the application, and give the respondent written notice of the time.

(3) If the respondent does not attend at the time fixed, the Magistrates Court must—

(a) if satisfied that the respondent has not been given reasonable notice of the time—fix another time to hear the application, adjourn the hearing to the other time and give the respondent written notice of the time; or

(b) dismiss the application.

(4) If the respondent attends at the time fixed under subsection (2) or (3) (a), the Magistrates Court may give the respondent leave to apply to amend or revoke the original order only if satisfied, on the basis of evidence provided by the respondent, that there may have been a substantial change in the circumstances surrounding the making of the original order.

(5) To remove any doubt, a decision under subsection (4) that there may have been a substantial change does not affect the hearing and deciding of the application for amendment or revocation of the original order.

(7) In this section:

aggrieved person includes a representative of the aggrieved person.

respondent includes a representative of the respondent.

(1) A protection order may be amended if the Magistrates Court is satisfied that—

(a) the order as amended could be made on application for a protection order; and

(b) if the amendment would reduce the protection of a child who is 15 years old or younger—the child is no longer in need of the greater protection provided by the unamended protection order.

(b) at least 1 of the criteria mentioned in that Act, section 205A (1) (b) (When Childrens Court may make final protection order) is satisfied; and

(1) If the Magistrates Court makes a protection order (other than an emergency order), the registrar must—

(a) if the order is an interim protection order—serve 2 copies of the order (1 marked as the endorsement copy) on the respondent no later than 7 days before the return date for the application for the final protection order; and

(b) if the order is not an interim protection order—serve a copy of the order on the respondent; and

(c) give a copy of the order to—

(i) each other party to the proceeding; and

(ii) the chief police officer; and

(iii) the registrar of firearms.

(2) The person commits an offence if the person engages in conduct that contravenes a condition of the protection order.

Maximum penalty: 50 penalty units, imprisonment for 5 years or both.

Note In deciding the sentence to be imposed on a person under this section, the Magistrates Court must consider the matters under the Crimes Act 1900, s 342.

(3) If the original order is a domestic violence order, the Magistrates Court must, on application, amend the original order by extending it for a stated period unless satisfied that a protection order is no longer necessary to protect the aggrieved person from domestic violence by the respondent.

(1) The Magistrates Court may make a final order (other than a workplace order) on application if satisfied that the respondent has—

(a) engaged in domestic violence; or

(b) engaged in personal violence towards the aggrieved person and may engage in personal violence towards the aggrieved person during the time the order is proposed to operate if the order is not made.

(2) If an interim order has been made on the application and the respondent has objected to the interim order, in making the final order the Magistrates Court must consider the respondent’s objection.

Note This section does not apply to consent orders (see s 29 (2) (b)).

(h) prohibit the respondent from doing anything mentioned in paragraphs (a) to (g) in relation to—

(i) a child of the aggrieved person; or

(ii) any other child if the Magistrates Court is satisfied that there is an unacceptable risk of the child being exposed to domestic violence;

The Magistrates Court

(1) The Magistrates Court

(2) The Magistrates Court may make a workplace order on application by an employee of a child facility if satisfied that the respondent poses a risk to people at the workplace, for example, children, carers or teachers.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) In this section:

child facility means a preschool, childcare centre, school or other similar facility the main purpose of which is the care or education of children.

(4) If an interim order is made and the return date for the application for the final order is less than 21 days after the day the interim order is made, the Magistrates Court must change the return date for the application to a day that is at least 21 days after the day the interim order is made.

The Magistrates Court may make an interim order if satisfied that it is necessary to make the interim order to do 1 or more of the following until the application for the final order is decided:

(a) ensure the safety of the aggrieved person or a child of the aggrieved person;

(b) if the interim order is an interim workplace order—ensure the safety of the aggrieved person at the workplace, or an employee of the aggrieved person or other people at the workplace;

(c) prevent substantial damage to the property of the aggrieved person or a child of the aggrieved person.

Note This section does not apply to consent orders (see s 29 (2) (b)).

(5) An interim order may require the respondent to return to the aggrieved person personal items reasonably needed by the aggrieved person or a child of the aggrieved person.

1 personal clothing

2 toiletries

3 books

4 photographs

5 house or car keys

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) This section applies if the Magistrates Court makes an interim order in the absence of a respondent and any representative of the respondent.

(2) The respondent may—

(a) fill out the endorsement copy of the interim order in accordance with the instructions on the copy; and

(b) return it to the Magistrates Court at least 7 days before the return date for the application for the final order to which the interim order relates.

(3) The interim order becomes a final order against the respondent—

(a) if—

(i) the Magistrates Court receives the endorsement copy from the respondent at least 7 days before the return date for the application for the final order; and

(ii) the respondent indicated on the endorsement copy that the respondent does not object to the interim order becoming a final order; or

(b) if the respondent does not return the endorsement copy to the Magistrates Court at least 7 days before the return date for the application for the final order.

(4) A final order under subsection (3) comes into force—

(a) if the respondent returned the endorsement copy and does not object to the interim order becoming final—on the day the Magistrates Court receives the endorsement copy; or

(b) on the return date for the application for the final order.

(5) The Magistrates Court may decide the application for the final order if—

(a) the respondent returns the endorsement copy of the interim order at least 7 days before the return date for the application for the final order; and

(b) the endorsement copy indicates that the respondent objects to the interim order becoming a final order.

(6) In this section:

endorsement copy, of an interim order, means the copy of the interim order marked as the endorsement copy under

section 33 (1).

respondent includes a representative of the respondent.

(i) the respondent has behaved in a way that satisfies the judicial officer that there are reasonable grounds for believing that, if an emergency order is not made, the respondent may cause physical injury to, or substantial damage to the property of, the aggrieved person or a child of the aggrieved person; and

(c) a final order or interim order made against the respondent in relation to the aggrieved person is served on the respondent.

effect

purpose, terms and effect

(1) A person commits an offence if—

(a) the person publishes (completely or partly) an account or report of a proceeding on an application for a protection order; and

(b) the account or report—

(i) identifies a party to the proceeding; or

(ii) identifies a person who is related to, or associated with, a party to the proceeding or is, or is claimed to be, in any other way concerned in the matter to which the proceeding relates; or

(iii) identifies a witness to the proceeding; or

(iv) allows the identity of a person mentioned in subparagraph (i), (ii) or (iii) to be worked out.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(c) information from being given to the director of public prosecutions, the director of corrective services or a police officer in relation to the exercise of the director’s or officer’s functions;

(ca) information from being given to the community advocate in relation to the exercise of the community advocate’s functions;

relative—see section 10A.

(d) a parent of a child of the original person.

return date, for an application, means the day fixed by the Magistrates Court for return of the application before the court.

behaviour

conduct

• section 10 (1) and (2)

• section 20

• section 21

• section 22 (1) (b)

• section 23 (1) (b), (2) (b)

• section 34 (3)

• section 41

• section 44

• section 46 (1) (c)

• section 63 (2) (b) and (4)

• section 71 (3)

• section 102

• dictionary, definitions of aggrieved person, domestic violence order and personal protection order

Note 1 The dictionary at the end of this Act defines certain terms used in this Act.

Note 2 A definition in the dictionary applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

(6) In this section:

protected person, in relation to a person accused of a domestic violence offence—

(a) means a person against whom the alleged conduct making up the offence was directed; and

(b) includes any other relevant person in relation to the accused person.

relevant person—see the Domestic Violence and Protection Orders Act 2001, dictionary.

Note The Domestic Violence and Protection Orders Act 2001, dict defines a relevant person in relation to the offender as any of the following people:

• a domestic partner of the accused person (domestic partner is defined in the Legislation Act, s 169 (1))

• a relative of the accused person (relative is defined in the Domestic Violence and Protection Orders Act 2001, s 10A)

• a child of a domestic partner of the accused person

• a parent of a child of the accused person.

(7) In this section:

protected person, in relation to a domestic violence offence, means—

(a) if the conduct making up the offence was directed at a child—a person with parental responsibility for the child; or

(b) if the conduct making up the offence was directed at someone else—the person at whom the conduct was directed.

care and control of

parental responsibility for

domestic violence offence—an offence that a person is accused of committing is a domestic violence offence if the conduct making up the offence is domestic violence under the Domestic Violence and Protection Orders Act 2001.

parental responsibility—see the Children and Young People Act 1999, section 17.

(c) emotional abuse (including psychological abuse) if the child or young person has suffered, is suffering or is likely to suffer in a way that has caused, is causing or is likely to cause significant harm to his or her wellbeing or development; or

(d) emotional abuse (including psychological abuse) if—

(i) the child or young person has been, is being, or is likely to be exposed to conduct that is domestic violence under the Domestic Violence and Protection Orders Act 2001; and

(ii) the exposure has caused, is causing or is likely to cause significant harm to the child’s or young person’s wellbeing or development.

Protection Orders Act 2001

domestic violence—see the Domestic Violence and Protection Orders Act 2001, section 9 (1).

(5) In this section:

domestic violence offence—an offence that a person is suspected of committing is a domestic violence offence if the conduct making up the offence is domestic violence under the Domestic Violence and Protection Orders Act 2001.

domestic violence offence—an offence is a domestic violence offence if the conduct making up the offence is domestic violence under the Domestic Violence and Protection Orders Act 2001.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example the signpost definitions ‘domestic violence—see the Domestic Violence and Protection Orders Act 2001, section 9 (1).’ means that the term ‘domestic violence’ is defined in section 9 (1) of that Act and the definition applies to this Act.

domestic violence—see the Domestic Violence and Protection Orders Act 2001, section 9 (1).

domestic violence offence—an offence is a domestic violence offence if the conduct making up the offence is domestic violence under the Domestic Violence and Protection Orders Act 2001.

(c) an offence if the conduct making up the offence is domestic violence under the Domestic Violence and Protection Orders Act 2001.

(4) In this section:

domestic violence offence—an offence is a domestic violence offence if the conduct making up the offence is domestic violence under the Domestic Violence and Protection Orders Act 2001.

Note 1 A licence is automatically suspended under the Domestic Violence and Protection Orders Act 2001, s 57 (Firearms and interim orders) if the Magistrates Court makes an interim protection order unless the court orders otherwise. Under that section, the Magistrates Court may also order seizure of the licence, and seizure and detention of firearms and ammunition, for the period of the interim order.

Note 2 A licence is also automatically suspended under the Domestic Violence and Protection Orders Act 2001, s 73 (Firearms and emergency orders) if a judicial officer makes an emergency order. Under that section, the officer may also order seizure of the licence, and seizure and detention of firearms and ammunition, for the period of the emergency order.

(c) any other order in relation to a matter arising under this Act that the court considers appropriate.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘institution—see the Children and Young People Act 1999, dictionary.’ means that the term ‘institution’ is defined in that dictionary and the definition applies to this Act.

(i) an offence made up of conduct that is domestic violence under the Domestic Violence and Protection Orders Act 2001 in relation to anyone with whom it is likely the person would live in the same household if the home detention order were made;

(ii) an offence made up of conduct that is domestic violence under the Domestic Violence and Protection Orders Act 2001, or would be domestic violence if the conduct happened in the ACT, directed at anyone with whom it is likely the person would live in the same household if the home detention order were made; or

(e) the likelihood that the person will commit an offence that is made up of conduct that is domestic violence under the Domestic Violence and Protection Orders Act 2001 in relation to anyone with whom it is likely the person would live in the same household if the home detention order were made;

Presentation speech made in the Legislative Assembly on 2004.

Notified under the Legislation Act on 2004.

For the latest republication of amended laws, see www.legislation.act.gov.au.