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CLAUSE NOTES
Domestic Violence Orders (National Recognition) Bill 2016
Part 1 – Preliminary
Clause 1: Short title
Specifies the name of the proposed Act.
Clause 2: Commencement
The Act commences on a day to be proclaimed.
Clause 3: Object of Act
Provides that the Act, in conjunction with the corresponding laws of another
jurisdiction, establishes a national recognition scheme for domestic violence
orders.
Clause 4: Interpretation
Defines certain words and terms for the purposes of the Act and in particular,
defines key terms and words such as: “corresponding law”, “DVO” (domestic
violence order), “general violence order”, “interim DVO”, “New Zealand
DVO”, “non-local DVO”, “protected person” and “vary”.
Clause 5: Local DVO
Provides that a “local DVO” is a family violence order, interim FVO or a police
family violence order made under the Family Violence Act 2004.
Clause 6: Interstate DVO
Provides that an “interstate DVO” is a domestic or family violence order or an
order that addresses a domestic violence concern issued according to the
legislation of other jurisdictions. The list of interstate DVOs may be amended
by regulations.
Clause 7: Registered foreign order
Provides that a “registered foreign order” means an order that is made by a
court of New Zealand to prevent family violence which has been registered as
an external family violence order under the Family Violence Act 2004, or a New
Zealand DVO that is registered according to the legislation of other jurisdictions.
The list of foreign orders may be amended by regulations.
Clause 8: Domestic violence concerns – SA and WA orders
Specifies when an intervention order made in South Australia (SA) or a violence
restraining order made in Western Australia (WA) is considered an order that
addresses a domestic violence concern.
Only orders that address domestic violence will be recognised and enforced
under the national recognition scheme. As South Australia and Western
Australia do not have a specific category of domestic violence orders, a general
violence order can be declared to be an order that addresses a domestic
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violence concern by the issuing authority that makes the order or a registrar of a
court.
Clause 9: Special provisions for foreign orders
Provides that a registered foreign order (that is a New Zealand DVO) is taken
to be made in the state or territory in which is it registered and is taken to be
made when it is so registered. If the registration of a foreign order is varied or
revoked under the national scheme then the registered foreign order is varied
or revoked.
Part 2 – National Recognition of DVOs
Clause 10: Recognition of DVOs
Provides that a “recognised DVO” means a local DVO made in Tasmania (such
as a FVO, interim FVO or PFVO), an interstate DVO made in a “participating
jurisdiction” (in Tasmania or another jurisdiction that has enacted provisions that
substantially correspond with this Act (a “corresponding law”)), or a foreign
order (a New Zealand DVO) that is a registered foreign order in any
participating jurisdiction.
Clause 11: Variations to DVO
Provides for the circumstances in which a variation to a “recognised DVO” is
recognised in Tasmania. A variation to a recognised DVO is a “recognised
variation” in Tasmania.
If a local DVO is varied, the variation is recognised if it is done in accordance
with the Family Violence Act 2004 or it is done by a court in another
participating jurisdiction under a corresponding law.
If an interstate DVO of foreign order is varied, the variation is recognised if it is
done by a court or any other person authorised to do so in the issuing
jurisdiction under the law of that jurisdiction, or it is done in a participating
jurisdiction by a court under a corresponding law.
Clause 12: Revocation of recognised DVO
Provides for the circumstances in which the revocation of a “recognised DVO”
is recognised in Tasmania. A recognised DVO ceases to be recognised under
the national scheme from the time it is revoked.
If a local DVO is revoked, the revocation is recognised in Tasmania if it is done
in accordance with the Family Violence Act 2004 or it is done by a court in
another participating jurisdiction under a corresponding law.
If an interstate DVO or foreign order is revoked, the revocation is recognised in
Tasmania if it is done by a court in the issuing jurisdiction or any other person
authorised to do so under the law of that jurisdiction, or it is done in a
participating jurisdiction by a court under a corresponding law.
Clause 13: Recognised DVO prevails over earlier comparable DVOs
Provides that a recognised DVO (local DVO, interstate DVO or foreign order)
that is newer than an earlier comparable recognised DVO supersedes the earlier
recognised DVO. A DVO is “comparable” if it is made against the same
defendant and it is made for the protection of one or more of the same
protected persons.
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The new recognised DVO supersedes the earlier comparable DVO once the
new DVO becomes enforceable against the respondent (when properly
notified).
Sub clause (5) provides that if a new DVO does not cover the same person(s)
as on the earlier comparable DVO, then that earlier DVO still exists and is
recognised for the person(s) on it and the new DVO provides protection for
the other.
A police issued DVO does not supersede a comparable DVO made by a court
of any jurisdiction.
Clause 14: Making of new orders
Specifies that this Act does not prevent the making of a local DVO (FVO,
interim FVO or PFVO) even if there is a recognised DVO in force that relates to
the same defendant. However, a PFVO cannot be made against the defendant
under the Family Violence Act 2004 if a police officer is aware that a recognised
DVO is in force against the defendant and that recognised DVO applies to the
same protected person and was made by a court. A PFVO does not supersede
a valid court made order. This is to ensure that the making of a PFVO does not
result in there being more than one recognised DVO in force in relation to the
same parties at the same time.
Clause 15: Recognised DVOs and variations are enforceable against defendant
Makes clear that a recognised DVO and a recognised variation to a recognised
DVO are enforceable in Tasmania. Once a defendant is properly notified of the
making of the local DVO under the law of Tasmania or the making of a non-
local DVO under the law of the jurisdiction in which the DVO was made, the
DVO is enforceable against the defendant. With foreign orders, these types of
orders are enforceable under the national scheme from the time it becomes a
recognised DVO in TAS or another jurisdiction. A foreign order is enforceable
against a defendant in Tasmania once it becomes a recognised DVO.
A recognised variation to a recognised DVO is only enforceable in Tasmania
once the defendant is properly notified of the variation in accordance with the
law of the jurisdiction where the variation was done.
Clause 16: Properly notified – meaning
Specifies for the purposes of the national recognition scheme the circumstances
in which a defendant is taken to be properly notified about the making of a local
DVO, an interstate DVO, or about the variation of a recognised DVO.
In Tasmania, a defendant is properly notified of a local DVO if the defendant is
present before the court when the local DVO is made or when a defendant is
served personally with the local DVO or a copy of it. A defendant is properly
notified of the making of an interstate DVO in accordance with the
corresponding law of the jurisdiction in which the DVO is made. In the case of
a PFVO, proper notification occurs when the order is served on the person to
whom it is issued and a copy sent to the Chief Clerk of Petty Sessions.
A defendant is to be properly notified about a variation to a recognised DVO.
Clause 17: Contravention of enforceable recognised DVO
Makes clear that a “non-local DVO” (being an interstate DVO or a foreign
DVO) that is a recognised DVO and enforceable in Tasmania may be enforced
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as if it were a local DVO and as if the defendant had been properly notified in
Tasmania about the making of the DVO.
Sets out the circumstances in which recognised variations to non-local DVOs
and recognised DVOs may be enforced in Tasmania.
Clause 18: Penalty for contravention
In Tasmania, the maximum penalty for the offence of contravening a local DVO
increases when there has been a previous contravention of a local DVO. This
clause provides that the penalty for contravening a recognised DVO escalates
with further contraventions of a recognised DVO in Tasmania.
Clause 19: Non-local DVO to be treated as local DVO
Provides that a recognised DVO that is a non-local DVO (that is, an interstate
DVO or a foreign order) has the same effect in Tasmania as a local DVO made
here under the Family Violence Act 2004.
This clause provides that a prohibition, restriction or condition imposed by a
non-local DVO will be recognised and enforceable in Tasmania or a participating
jurisdiction which has enacted a corresponding law.
Clause 20: Licences, permits and other authorisations
Specifies that if a law of Tasmania restricts a person’s ability to hold a licence
(such as a firearms licence) because the person is subject to a local DVO (which
requires a licence to be suspended or revoked) this extends in the same way to
a person who is, or has been subject to, a recognised non-local DVO.
Clause 21: Recognition of disqualification to hold firearms licence
Provides that if a person is disqualified from holding a licence for a firearm in
another jurisdiction because of a recognised non-local DVO, the person is also
disqualified from holding a licence for a firearm under the Firearms Act 1996.
This clause makes clear that the Commissioner of Police must cancel or suspend
a Tasmanian firearms licence or refuse to issue a Tasmanian firearms licence to a
person if a recognised DVO disqualifies that person from holding a licence.
Clause 22: Orders for costs
A non-local DVO (an interstate DVO or foreign order) as far as it requires the
payment of money cannot be enforced in Tasmania. The recognition of a DVO
from another jurisdiction in Tasmania does not permit a Tasmanian court or
tribunal to award costs in respect of proceedings occurring in another
jurisdiction.
Part 3 – Variation and Revocation of Recognised Non-local DVOs
Clause 23: Definition
Defines ‘court’ for the purposes of Part 3 to mean a Tasmanian court that has
the power to make a FVO, interim FVO and PFVO (local DVOs) under the
Family Violence Act 2004.
Clause 24: Power of court to vary or revoke recognised non-local DVOs
Specifies when a court can vary or revoke a recognised non-local DVO (an
interstate DVO or foreign order).
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Part 3 does not apply to a foreign order (a New Zealand DVO) registered in
Tasmania as these orders can be varied, extended or revoked under Part 4 of
the Family Violence Act 2004.
Clause 25: Application for variation or revocation of recognised non-local DVO
Provides for the circumstances in which an application to vary or revoke a
recognised non-local DVO may be made to a court and sets out the application
requirements.
Clause 26: Decision about hearing of application
Specifies that a court has discretion whether to hear or not hear an application
to vary or revoke a non-local DVO. Subclause 2 provides a number of matters
that may be considered in determining whether to hear an application to vary or
revoke a non-local DVO.
A court must refuse to hear an application made by a defendant during any
period in which the defendant is not entitled to apply for a variation or
revocation of the DVO if the law of the issuing jurisdiction provides that the
defendant is not entitled to apply for a variation or revocation.
Part 4 – Exchange of Information
Clause 27: Issuing authorities may obtain DVO information
Provides that a Tasmanian “issuing authority” (being a court or person with
power to make, vary or revoke a DVO) may obtain and use information about
a DVO from another jurisdiction’s issuing authority or from a Tasmanian or
interstate law enforcement agency.
Clause 28: Issuing authorities must provide DVO information
Specifies that a Tasmanian “issuing authority” (being a court, or person with
power to make, vary or revoke a DVO) that makes, varies or revokes a DVO
must, on request, provide information about a DVO to a court of any
participating jurisdiction for the purposes of a corresponding law or to
Tasmanian or interstate law enforcement agency for the purpose of its law
enforcement functions.
Clause 29: Law enforcement agencies may obtain DVO information
Provides that a Tasmanian law enforcement agency (being the Police Service of
Tasmania) may obtain information about a DVO from an issuing authority of
Tasmania or another jurisdiction, or interstate law enforcement agency and use
the information for the purpose of exercising its law enforcement functions.
Clause 30: Information to be provided to law enforcement agencies
Makes clear that a Tasmanian law enforcement agency (being the Police Service
of Tasmania) is to provide, on request, information about a DVO to an
interstate law enforcement agency for the purpose of exercising its law
enforcement functions.
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Part 5 – Miscellaneous
Clause 31: Certificate evidence – notification
Provides for a certificate to be issued stating that the making of, or the variation
to, a DVO has been properly notified in Tasmania or another jurisdiction. The
certificate is admissible in evidence in proceedings.
Clause 32: Regulations
Standard regulation making provision.
Clause 33: Administration of Act
This clause assigns the administration of the Act to the Minister for Justice and
nominates the Department of Justice as the responsible agency until such time
as provision is made by an order under the Administrative Arrangements Act
1990.
Clause 34: Consequential Amendments
Bail Act 1994
1. Adds recognised DVO to the list of conditions controlling the conduct of a
person admitted to bail.
Family Violence Act 2004
1. Removes reference to another State or Territory of the Commonwealth
from the definition of ‘external family violence order’ as under the national
recognition scheme it is no longer necessary to register interstate DVOs in
Tasmania.
2. Provides for a police officer to detain a person for a reasonable period to
verify the status of a recognised non-local DVO.
3. Provides that a police officer is not to make a local DVO (PFVO) where a
court made recognised DVO is already in force for the same respondent
and protected person and is enforceable against the respondent.
4. Provides for a court to restrict the publication of any material relating to
proceedings before the court under the Domestic Violence Orders (National
Recognition) Act 2016 that is forbidden or which may disclose the identity of
an affected child.
Firearms Act 1996
1. Adds recognised DVO to the list of orders that, when made, automatically
cancel a person’s ability to hold a licence to possess or use a firearm.
Provides that the Commissioner may consider the order made by the court
in issuing a recognised DVO when determining whether to reinstate a
licence or return any firearms or both reinstate a licence and return any
firearms.
2. Adds recognised DVO to the list of orders that, when made, empower the
Commissioner to suspend a person’s licence by serving on the holder of the
licence a notice. Provides that the suspension of the licence has effect,
unless sooner revoked by the Commissioner, for the duration of a
recognised DVO or as determined by a court.
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Justices Act 1959
1. When considering whether to bail a person taken into custody for a family
violence offence or to facilitate the making of an application for a family
violence order, in determining whether there is reasonable ground for
believing that to do so would not be in the interests of justice the police
officer making the decision must also take into account if a recognised DVO
is in force in respect of that person.
2. Gives the Magistrates Rule Committee the ability to make provisions as to
the practice and procedure relating to matters arising under the Domestic
Violence Orders (National Recognition) Act 2016.
Police Offences Act 1935
1. In deciding whether a person is a fit and proper person to be granted an
application to use, carry or have possession of a crossbow, the
Commissioner is to take into account if a recognised DVO is in force.
2. In deciding whether a person is a fit and proper person for a permit to
manufacture, distribute, supply, sell or possess body armour the
Commissioner is to take into account if a recognised DVO is in force.
Residential Tenancy Act 1997
1. Provides that if a recognised DVO is in force that a tenant may, without the
authority of an order of the Court or the consent of the owner of the
residential premises, add, alter or remove any lock or other security device.
Sentencing Act 1997
1. Provides that where a court makes a drug treatment order and if the
offence in respect of which the drug treatment order is made is a family
violence offence, the court must attach to that order any conditions of a
recognised DVO.
Part 6 – Transitional Provision
Clause 35: Definition
Inserts definitions of “Chief Magistrate”, “clerk of petty sessions” and
“commencement date” for the purposes of Part 6.
Clause 36: Enforcement of DVOs under other provisions
Provides that this Act does not affect the enforceability in Tasmania of any local
DVO (FVO, interim FVO or PFVO) made before the commencement date or
of any interstate DVO or foreign order (a New Zealand DVO) registered in
Tasmania under Part 4 of the Family Violence Act 2004 before the
commencement date except as otherwise provided for under this Act.
Clause 37: DVOs made in this jurisdiction
Part 2 (National Recognition of DVOs) of this Act will apply to any local DVOs
or foreign DVOs made in Tasmania on or after the date on which this Act
commences.
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Clause 38: DVOs made in other jurisdictions
Part 2 (National Recognition of DVOs) of this Act will apply to any DVO made
in other participating jurisdictions that is a recognised DVO under a
corresponding law of that jurisdiction. A non-local DVO, including any variation,
is not enforceable in Tasmania under this Act until the date on which this Act
commences.
Clause 39: DVOs declared to be recognised DVOs
Specifies that a "recognised DVO" includes any DVO that has been declared by
a clerk of petty sessions in Tasmania or a registrar of a court of in a participating
jurisdiction to be a recognised DVO. A DVO that is declared to be a
recognised DVO in Tasmania under this Act is enforceable once the declaration
has been made.
Clause 40: DVOs declared to be recognised in other jurisdictions before commencement
date
Provides that a DVO declared to be recognised in another participating
jurisdiction is still recognised even if the relevant declaration was made before
the commencement date. A DVO declared to be recognised, including any
variation, is not enforceable in Tasmania under this Act until the date on which
this Act commences.
Clause 41: Power to declare DVO to be recognised
Provides that a clerk of petty sessions may declare any DVO made in any
jurisdiction to be a recognised DVO in Tasmania. A DVO can be declared to
be recognised in Tasmania even if the DVO was made in a jurisdiction that is
not a participating jurisdiction. Notice of a declaration is not to be served on
the defendant unless the person who made the application for the declaration
consents to service.
Clause 42: Application for order
Specifies that an application for seeking a DVO to become a recognised DVO
in Tasmania may be made by any person who would be able to make an
application for variation of the DVO if the DVO were a recognised DVO and
must be made using a form approved by the Chief Magistrate and include any
information or evidence required by the Chief Magistrate.
Clause 43: Functions of clerk of petty sessions may be exercised by court
Provides that a court that can make a local DVO (FVO or interim FVO) may
exercise the functions of the clerk of petty sessions under Part 6.
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