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Family Violence Protection Amendment
Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
General
The Royal Commission into Family Violence report was tabled in Parliament
in March 2016. The report included 227 recommendations regarding how to
effectively prevent family violence, improve early intervention, support
victims, hold perpetrators to account, better coordinate community and
government responses, and evaluate and measure strategies, frameworks,
policies, programs and services.
The Bill amends the Family Violence Protection Act 2008 and various
other Acts, including the Criminal Procedure Act 2009, the Magistrates'
Court Act 1989, the County Court Act 1958 and the Coroners Act 2008,
to implement a number of recommendations of the Royal Commission.
These recommendations relate to family violence safety notices, family
violence intervention orders, family violence-related criminal proceedings,
family violence intervention order appeals, and the review of family
violence-related deaths.
Also included in the Bill are amendments to the Public Health and
Wellbeing Act 2008 recommended by the Royal Commission, to assist in
creating a stronger leadership role for local government in the prevention of
and response to family violence.
581244 1 BILL LA INTRODUCTION 6/3/2017
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill, which are--
• to amend the Family Violence Protection Act 2008--
• to require the court to make a family violence
intervention order for a child if the court makes
an order for an affected family member; and
• to amend requirements for explaining family
violence intervention orders; and
• to provide for a court to order alternative service;
and
• to extend the maximum duration of family
violence safety notices; and
• to make other miscellaneous amendments to
that Act; and
• to amend the Coroners Act 2008--
• to establish the Victorian Systemic Review of
Family Violence Deaths unit and to provide for
its objectives and functions; and
• to enable the Coroners Court to include
information relating to family violence
intervention orders or recognised domestic
violence orders in its published findings,
recommendations and reports; and
• to amend the County Court Act 1958 and the
Magistrates' Court Act 1989 to give the Koori Court
Division of each of those courts jurisdiction in relation
to certain family violence matters; and
2
• to amend the Crimes Act 1958 to provide that
a prosecution for a certain offence must not be
commenced without the consent of the Director of
Public Prosecutions; and
• to amend the Criminal Procedure Act 2009 to provide
for the use of recorded evidence-in-chief by certain
witnesses in certain criminal proceedings; and
• to amend the Public Health and Wellbeing Act 2008
in relation to the inclusion of family violence measures
in municipal public health and wellbeing plans; and
• to repeal the Family Violence Protection Amendment
Act 2014; and
• to make consequential amendments relating to the
National Domestic Violence Order Scheme Act 2016.
Clause 2 provides for the commencement of the Bill.
Subclause (1) provides that Parts 1, 7 and 8 and section 41
of the Family Violence Protection Amendment Act 2017
come into operation on the day after the day on which the Act
receives Royal Assent.
Subclause (2) provides that subject to subsection (3), the
remaining provisions of the Act come into operation on a
day or days to be proclaimed.
Subclause (3) provides that if a provision referred to in
subsection (2) does not come into operation before
1 September 2018, it comes into operation on that day.
The default commencement date is approximately
18 months after the introduction of the Bill, to ensure that
affected stakeholders have sufficient time to complete all the
implementation activities that are necessary for each of the
reforms to commence, and to allow for appropriate staging of
their commencement.
Clause 3 provides that for the purpose of the Family Violence Protection
Amendment Act 2017, the Family Violence Protection
Act 2008 is called the Principal Act.
3
Part 2--Amendment of the Family Violence Protection Act 2008
Division 1--Family violence intervention orders
protecting children
Clause 4 amends the definition of family violence intervention order in
section 11 of the Family Violence Protection Act 2008.
Subclause (1) amends the definition of final order in
section 11(2) so that it refers to new sections 77, 77A and 77B,
inserted by clause 10. These new sections provide for the
making of final orders to protect children.
Subclause (2) amends the definition of interim order so that it
refers to new sections 53AA and 53AB, inserted by clause 7.
These new sections provide for the making of interim orders to
protect children.
Clause 5 inserts new section 52A in the Family Violence Protection
Act 2008, which requires the court to consider any children
before making an interim family violence intervention order.
New section 52A essentially replicates existing section 53(1A).
The new section provides that before deciding whether to make
an interim order under section 53, the court must consider
whether there are any children who have been subjected to
family violence committed by the respondent.
Clause 6 amends section 53 of the Family Violence Protection Act 2008,
which makes provision for the making of an interim family
violence intervention order.
Subclause (1) substitutes section 53(1)(a)(iii). Currently,
section 53(1)(a)(iii) allows a court to make an interim order
to protect a child who has been subjected to family violence
committed by the respondent, regardless of whether the child is
an affected family member.
As a result of new sections 53AA and 53AB, inserted by
clause 7, new section 53(1)(a)(iii) only applies to a child who is
an affected family member. The new section provides that the
court may make an interim order if a person has applied to the
court for a family violence intervention order and the court is
satisfied, on the balance of probabilities, that an interim order
is necessary pending a final decision about the application to
protect an affected family member who is a child who has been
subjected to family violence committed by the respondent.
4
Subclause (2) repeals section 53(1A) and 53(1B), as the
amendments in clauses 5 and 7 mean that these sections are
no longer necessary.
Clause 7 inserts new sections 53AA and 53AB in the Family Violence
Protection Act 2008, in response to the Royal Commission
recommendation to establish a rebuttable presumption that,
if an applicant for a family violence intervention order has a
child who has experienced family violence, that child should be
included in the applicant's family violence intervention order or
protected by their own order.
New section 53AA
In accordance with new section 53AA(1), the section applies if--
• the court makes an interim order under section 53(1)
in relation to an affected family member; and
• the court is satisfied, on the balance of probabilities,
that a child has been subjected to family violence
committed by the respondent (whether or not that
child is also an affected family member).
Under new section 53AA(2), if the court makes the interim
order under section 53(1)(a) or 53(1)(c), subject to new
section 53AA(4), the court must--
• if the child's need for protection is substantially the
same as that of the affected family member, include
the child in the interim order as a protected person; or
• otherwise, make a separate interim order for the child
as a protected person.
If the court makes the interim order by consent under
section 53(1)(b), and that order does not include the child, new
section 53AA(3) provides that, subject to new section 53AA(4),
the court must make a separate interim order for the child as a
protected person.
However, as provided in new section 53AA(4), the court is not
required to include the child in the interim order or to make a
separate interim order to protect the child if the court is satisfied
that it is not necessary to do so to protect the child or ensure the
safety of the child pending a final decision about the application.
5
New section 53AB
New section 53AB provides that if the court does not make an
interim order under section 53(1) in relation to an affected family
member, the court may, on its own initiative, make an interim
order for a child who is not an affected family member as a
protected person, if satisfied on the balance of probabilities,
that--
• the child has been subjected to family violence
committed by the respondent; and
• an interim order is necessary to protect the child
pending a final decision about the application.
Clause 8 inserts new section 73I in the Family Violence Protection
Act 2008, which requires the court to consider any children
before making a final family violence intervention order, and
is similar to existing section 77(1).
New section 73I(1) provides that before deciding whether to
make a final order under section 74, the court must consider
whether there are any children who have been subjected to
family violence committed by the respondent.
New section 73I(2) provides that before deciding whether to
make a final order under section 76, the court must consider
whether there are any children who have been subjected to
behaviour that would be family violence if the child and the
respondent or additional respondent were family members.
Section 76 provides for making associated final orders where
the court has made a final order under section 74.
Clause 9 substitutes the notes to section 74(2) of the Family Violence
Protection Act 2008, to refer to new sections 77 and 77B.
Clause 10 substitutes section 77 of the Family Violence Protection
Act 2008 with new sections 77, 77A and 77B.
These amendments respond to the Royal Commission
recommendation to establish a rebuttable presumption that, if an
applicant for a family violence intervention order has a child who
has experienced family violence, that child should be included in
the applicant's family violence intervention order or protected by
their own order.
6
New section 77
In accordance with new section 77(1), the section applies if--
• the court makes a final order under section 74 in relation
to an affected family member; and
• the court is satisfied, on the balance of probabilities, that
a child has been subjected to family violence committed
by the respondent (whether or not that child is also an
affected family member).
Under new section 77(2), unless the court makes the final order
under section 74 by consent, subject to new section 77(4), the
court must--
• if the child's need for protection is substantially the
same as that of the affected family member, include
the child in the final order as a protected person; or
• otherwise, make a separate final order for the child
as a protected person.
If the court makes the final order by consent under section 74,
and that order does not include the child, new section 77(3)
provides that, subject to new section 77(4), the court must
make a separate final order for the child as a protected person.
However, as provided in new section 77(4), the court is not
required to include the child in the final order or to make a
separate final order to protect the child if the court is satisfied
that it is not necessary to do so to protect the child from family
violence committed by the respondent.
New section 77A
In accordance with new section 77A(1), the section applies if--
• the court makes a final order under section 76 in relation
to an affected family member or an additional applicant;
and
• the court is satisfied, on the balance of probabilities,
that a child (whether or not that child is also an affected
family member or an additional applicant) has been
subjected to behaviour that would be family violence
if the child and the respondent or associated respondent
were family members.
7
Under new section 77A(2), unless the court makes the final order
under section 76 by consent, subject to new section 77A(4), the
court must--
• if the child's need for protection is substantially
the same as that of the affected family member or
additional applicant, include the child in the final
order as a protected person; or
• otherwise, make a separate final order for the child
as a protected person.
If the court makes the final order by consent under section 76,
and that order does not include the child, new section 77A(3)
provides that, subject to new section 77A(4), the court must
make a separate final order for the child as a protected person.
However, as provided in new section 77A(4), the court is not
required to include the child in the final order or to make a
separate final order to protect the child if the court is satisfied
that it is not necessary to do so to protect the child from
behaviour that would be family violence committed by the
respondent or additional respondent.
New section 77B
New section 77B applies where a child is not an affected family
member or an additional applicant.
New section 77B(1) provides that if the court does not make
a final order under section 74 in relation to an affected family
member, the court may, on its own initiative, make a final order
for a child of an affected family member or respondent as a
protected person, if satisfied on the balance of probabilities, that
the respondent has committed family violence against the child
and is likely to continue to do so or do so again.
New section 77B(2) provides that if the court does not make
a final order under section 76 in relation to an affected family
member or an additional applicant, the court may, on its own
initiative--
• make a final order for a child of an affected family
member as a protected person if satisfied, on the balance
of probabilities, that the additional respondent has
subjected the child to behaviour that would be family
violence if the child and the additional respondent were
8
family members and is likely to continue to do so or do
so again; or
• make a final order for a child of an additional applicant
as a protected person if satisfied, on the balance of
probabilities, that the respondent has subjected the child
to behaviour that would be family violence if the child
and the respondent were family members and is likely
to continue to do so or do so again.
Clause 11 repeals section 78(6) of the Family Violence Protection
Act 2008, which provides that section 77 continues to apply in
relation to any children of the affected family member or the
respondent, whether or not the court decides to make a final order
under section 78(1). Section 78(1) allows the court to make a
final order if the parties to a proceeding consent to or do not
oppose the order being made.
Section 78(6) is made redundant by the amendments in clause 10,
which provide for the making of final orders to protect children.
Clause 12 substitutes section 100(1)(b) of the Family Violence Protection
Act 2008, which sets out who can apply to vary, revoke or
extend a family violence intervention order. New section
100(1)(b) refers to orders made under new sections 53AB
and 77B, inserted by clauses 7 and 10; rather than orders made
relying on section 53(1)(a)(iii) in relation to a child who was not
an affected family member or section 77(2).
Clause 13 amends section 104 of the Family Violence Protection
Act 2008, substituting "must" for "may", which is necessary
as a result of the amendments in clauses 7 and 10.
Section 104 applies where an application has been made to vary
or revoke a family violence intervention order and a child has
become a family member of the protected person or respondent
since the order was made. If the court is satisfied, on the balance
of probabilities, that the child has been subjected to family
violence by the respondent and is likely again to be subjected to
family violence, the court may, on its own initiative--
• if the child's need for protection is substantially the
same as that of the other protected person--
• vary the order to which the application relates to
include the child; and
9
• make any other variations to the order that the
court considers appropriate; or
• otherwise, make a separate order under section 74 for
the child as a protected person.
The effect of the amendment is that the court must include the
child in the protected person's order or make a separate order for
the child if satisfied that the grounds in section 104 are met.
Clause 14 amends section 105(2) of the Family Violence Protection
Act 2008, so that it refers to new sections 53AB and 77B,
inserted by clauses 7 and 10; rather than sections 53(1)(a)(iii)
and 77(2).
Section 105 applies if--
• the court makes or varies an order relying on
section 103 or 104; and
• there is a subsequent application under section 100
to vary or revoke the order or the court considers it
appropriate to vary or revoke the order on its own
initiative.
Existing section 105(2) provides that for the purposes of the
subsequent application, a reference in section 100 to an order
made relying on section 53(1)(a)(iii) or 77(2) is taken to include
a reference to an order made or varied relying on section 103
or 104. Sections 103 and 104 allow the court to make or vary
orders on its initiative.
The effect of the amendment is that where section 105 applies,
for the purposes of the subsequent application to vary or revoke
the order under section 100, a reference in section 100 to an order
made relying on new section 53AB or 77B is taken to include
a reference to an order made or varied relying on section 103
or 104.
Clause 15 substitutes section 201(c)(iv) of the Family Violence Protection
Act 2008, which sets out when a parent of a child who is a
protected person must be given a copy of an order, so that it
refers to orders made by the court under new sections 53AA,
77 and 77A, inserted by clauses 7 and 10, or on the court's own
initiative.
10
Clause 16 inserts new section 228A in the Family Violence Protection
Act 2008, which contains transitional provisions for the
amendments in Division 1 of Part 2 of the Bill.
New section 228A(1) provides the Family Violence Protection
Act 2008 as amended by Division 1 of Part 2 of the Family
Violence Protection Amendment Act 2017 applies to a
proceeding for a family violence intervention order that--
• commences on or after the commencement of that
Division; or
• had been commenced but not determined before the
commencement of that Division.
New section 228A(2) provides that if, before the commencement
of Division 1 of Part 2 of the Family Violence Protection
Amendment Act 2017, an interim order was made under
section 53(1)(a)(iii) in relation to a child who was not an affected
family member, on and after that commencement, the interim
order is taken to have been made under section 53AB.
New section 228A(3) provides that if, before the commencement
of Division 1 of Part 2 of the Family Violence Protection
Amendment Act 2017, a final order was made under
section 77(2) in relation to a child who was not an affected
family member, on and after that commencement, the final
order is taken to have been made under section 77B.
Division 2--Explanations of family violence intervention orders
Clause 17 amends section 57 of the Family Violence Protection Act 2008,
which makes provision for the explanation of an interim family
violence intervention order.
Some of these amendments respond to the Royal Commission
recommendation regarding who should explain a family
violence intervention order, and what should be included in
that explanation about orders made under the Family Law
Act 1975 of the Commonwealth or the Children, Youth and
Families Act 2005. In making this recommendation, the Royal
Commission was of the view that clear communication from the
court is required to help the parties understand the effect of
orders.
11
Subclause (1) inserts new section 57(1AA), which provides that
section 57 applies if the court makes an interim order against a
respondent who is an adult. Making separate provision for the
explanation of an interim order in relation to a respondent who is
an adult and a respondent who is a child is necessary to ensure
that the amendments in clauses 21 and 22 do not apply to a
respondent who is a child. The effect of clauses 21 and 22 is that
the offences of contravention of a family violence intervention
order apply to a respondent who has received an oral explanation
of an interim order in accordance with new section 57(1).
Subclause (2) amends section 57(1). The effect of the
amendment is that the responsibility for giving the oral
explanation of an interim order to the respondent and protected
person (or whichever of them is before the court) is transferred
from the appropriate registrar to the court. This amendment
responds to the Royal Commission recommendation that the
court should give the oral explanation of a family violence
intervention order. Under existing section 96, the court is
already required to give the oral explanation of a final order.
Subclause (3) amends section 57(1)(d) and (h) so that
"protected person" is substituted for "affected family member".
This is a technical amendment, which reflects that once an
interim order is made to protect an affected family member, for
the purpose of the Family Violence Protection Act 2008, they
then become a protected person.
Subclause (4) substitutes section 57(2) and (2A), with new
sections 57(2), 57(2A) and 57(2B).
New section 57(2) provides that the explanation of an interim
order under new section 57(1) must be a clear oral explanation.
This is consistent with what is required in relation to the
explanation of an interim order under existing section 57(2)(a).
New section 57(2A) provides that a written notice including the
matters referred to in section 57(1), in the form prescribed by
rules, must be given to the protected person and either given to,
or served on, the respondent (as the case requires) with a copy of
the interim order. The new section reflects that, in practice, the
written notice is given or served at the same time as the copy of
the interim order. It also provides for the written notice to be
prescribed in court rules, rather than in the Family Violence
Protection Regulations 2008, as it is currently.
12
Under new section 57(2B) the written notice may include any
additional information the court considers necessary to explain
the interim order.
Subclause (5) amends section 57(3) so that "court" is substituted
for "appropriate registrar". This amendment reflects that, under
new section 57(1), the court will give the oral explanation of an
interim order; rather than the appropriate registrar.
Clause 18 inserts new section 57A in the Family Violence Protection
Act 2008, which makes provision for the explanation of an
interim family violence intervention order where the respondent
is a child. This provision essentially replicates section 57, as
amended by clause 17, which makes provision for the
explanation of an interim order where the respondent is an adult.
New section 57A(1) provides that section 57A applies if the
court makes an interim order against a respondent who is a child.
Making separate provision for the explanation of an interim order
in relation to a respondent who is a child and a respondent who is
an adult is necessary to ensure that the amendments in clauses 21
and 22 do not apply to a respondent who is a child. The effect
of clauses 21 and 22 is that the offences of contravention of a
family violence intervention order apply to a respondent who has
received an oral explanation of an interim order in accordance
with new section 57(1).
Where the respondent or protected person (or both) are before
the court when an interim order is made, new section 57A(2)
requires the court to explain to the respondent or protected person
(or whichever of them is before the court) the matters set out in
paragraphs (a) to (i) of that section. In accordance with new
section 57A(3), the explanation must be a clear oral explanation.
New section 57A(4) provides that a written notice including the
matters referred to in section 57A(2), in the form prescribed by
rules, must be given to the protected person and served on the
respondent with a copy of the interim order. As provided by new
section 57A(5), the written notice may include any additional
information the court considers necessary to explain the interim
order.
In accordance with new section 57A(6), failure to explain an
interim order in accordance with new section 57A does not affect
its validity.
13
Clause 19 amends section 96 of the Family Violence Protection Act 2008,
which makes provision for the explanation of a final family
violence intervention order.
Some of these amendments respond to the Royal Commission
recommendation regarding who should explain a family
violence intervention order, and what should be included in that
explanation about orders made under the Family Law Act 1975
of the Commonwealth or the Children, Youth and Families
Act 2005. In making this recommendation, the Royal
Commission was of the view that clear communication from
the court is required to help the parties understand the effect of
orders.
Subclause (1) inserts new section 96(1AA), which provides
that section 96 applies if the court makes a final order against a
respondent who is an adult. Making separate provision for the
explanation of a final order in relation a respondent who is an
adult and a respondent who is a child is necessary to ensure
that the amendments in clauses 21 and 22 do not apply to a
respondent who is child. The effect of clauses 21 and 22 is that
the offences of contravention of a family violence intervention
order apply to a respondent who has received an oral explanation
of a final order under section 96(1).
Subclause (2) inserts new sections 96(1)(f) and 96(1)(g), to
require both the oral and written explanations of a final order to
include the following additional information--
• how the final order interacts with a Family Law Act
order or an order under the Children, Youth and
Families Act 2005; and
• if the court has varied, suspended, revoked or revived a
Family Law Act order because it is inconsistent with the
final order, the purpose, terms and effect of the variation
or suspension.
The amendment in subclause (2) responds to the Royal
Commission recommendation that these matters should form
part of the explanation of a family violence intervention order.
Existing sections 57(1)(f) and 57(1)(g) already require the
explanation of an interim order to include these matters.
Subclause (3) substitutes section 96(3), with new sections 96(3)
and 96(3A).
14
New section 96(3) provides that a written notice including the
matters referred to in section 96(1), in the form prescribed by
rules, must be given to the protected person and either given to,
or served on, the respondent (as the case requires) with a copy
of the final order. The new section reflects that, in practice, the
written notice is given or served at the same time as the copy of
the final order. It also provides for the written notice to be
prescribed in court rules, rather than in the Family Violence
Protection Regulations 2008, as it is currently.
Under new section 96(3A) the written notice may include any
additional information the court considers necessary to explain
the final order.
Subclause (4) substitutes section 96(4) so that it is consistent with
existing section 57(3). New section 96(4) provides that a failure
by the court to explain a final order in accordance with section 96
does not affect the validity of the final order
Clause 20 inserts new section 96A in the Family Violence Protection
Act 2008, which makes provision for the explanation of a final
family violence intervention order where the respondent is a
child. This provision replicates section 96, as amended by
clause 19, which makes provision for the explanation of a final
order where the respondent is an adult.
New section 96A(1) provides that section 96A applies if the
court makes a final order against a respondent who is a child.
Making separate provision for the explanation of a final order in
relation to a respondent who is a child and a respondent who is
an adult is necessary to ensure that the amendments in clauses 21
and 22 do not apply to a respondent who is a child. The effect of
clauses 21 and 22 is that the offences of contravention of a family
violence intervention order apply to a respondent who has
received an oral explanation of a final order in accordance with
section 96(1).
Where the respondent or protected person (or both) are before
the court when a final order is made, new section 96A(2)
requires the court to explain to the respondent or protected person
(or whichever of them is before the court) the matters set out in
paragraph (a) to (h) of that section. In accordance with new
section 96A(3), the explanation must be a clear oral explanation.
15
New section 96A(4) provides that a written notice including the
matters referred to in section 96A(2), in the form prescribed by
rules, must be given to the protected person and served on the
respondent with a copy of the final order. As provided by new
section 96A(5), the written notice may include any additional
information the court considers necessary to explain the final
order.
In accordance with new section 96A(6), failure to explain a final
order in accordance with new section 96A does not affect its
validity.
Clause 21 amends section 123 of Family Violence Protection Act 2008,
which creates an offence of contravention of a family violence
intervention order.
The effect of the amendment to section 123(1)(b) is that the
offence applies to an adult respondent to a family violence
intervention who is before the court when the order was made
and received an oral explanation of the order in accordance
with new section 57(1) or 96(1). In these circumstances, the
respondent does not need to be personally served with a copy
of the order.
Clause 22 amends section 123A of the Family Violence Protection
Act 2008, which creates an offence of contravention of a family
violence intervention order intending to cause harm or fear for
safety.
The effect of the amendment to section 123A(2)(b) is that
the offence applies to an adult respondent to a family violence
intervention who is before the court when the order was made
and received an oral explanation of the order in accordance
with new section 57(1) or 96(1). In these circumstances, the
respondent does not need to be personally served with a copy
of the order.
Clause 23 amends section 201 of the Family Violence Protection
Act 2008, which makes provision for the service of family
violence intervention orders.
Subclause (a) substitutes section 201(b) to provide that if
the court makes, varies, extends or revokes a family violence
intervention order, the appropriate registrar for the court
must serve a copy of the order on the respondent, unless the
16
respondent has been given an explanation of the order under
section 57(1) or 96(1).
Subclause (b) inserts new section 201(c)(iia), which provides that
if a respondent is not required to be served with an order under
new section 201(b), they must be given a copy of the order.
Clause 24 inserts new section 229A in the Family Violence Protection
Act 2008, which contains transitional provisions for the
amendments in Division 2 of Part 2 of the Bill.
New section 229A(1) provides that the Family Violence
Protection Act 2008 as amended by Division 2 of Part 2 of the
Family Violence Protection Amendment Act 2017 applies to
a proceeding for a family violence intervention order that--
• commences on or after the commencement of that
Division; or
• had been commenced but not determined before the
commencement of that Division.
New section 229A(2) provides that despite the commencement
of Division 2 of Part 2 of the Family Violence Protection
Amendment Act 2017, section 123 as in force immediately
before that commencement, continues to apply to a contravention
of a family violence intervention order that was made before that
commencement.
New section 229A(3) provides that despite the commencement
of Division 2 of Part 2 of the Family Violence Protection
Amendment Act 2017, section 123A as in force immediately
before that commencement continues to apply to a contravention
of a family violence intervention order that was made before that
commencement.
Division 3--Alternative service
Clause 25 amends section 33 of the Family Violence Protection Act 2008,
which relates to the provision of an address for service by the
respondent to a family violence safety notice.
Currently, section 33(1)(b) provides that if a police officer issues
a family violence safety notice, that police officer, or the police
officer who applied for the notice, must advise the respondent
that if a police officer is unable to locate them to serve a
document under the Family Violence Protection Act 2008, the
17
police officer may, under section 207, seek information about
them from public sector organisations.
Subclause (1) substitutes section 33(1)(b) so that a police officer
must also advise the respondent that a police officer may, under
section 207, seek information about them from public sector
organisations to enable them to be served with a document under
an order for alternative service. This amendment is necessary as
clause 29 amends section 207 so that it applies for the purpose of
assisting a police officer to enable the respondent to be served
with a document under an order for alternative service.
Subclause (2) inserts new section 33(2)(c) to list an email address
as one of the addresses for service of documents a respondent
may provide to a police officer who has applied for or issued a
family violence safety notice against them.
Clause 26 amends section 85 of the Family Violence Protection Act 2008,
which relates to the provision of an address for service by the
respondent to a family violence intervention order that includes
an exclusion condition.
Currently, section 85 provides that if a court includes an
exclusion condition in a family violence intervention order, the
court must advise the respondent that if a police officer is unable
to locate them to serve a document under the Family Violence
Protection Act 2008, the police officer may, under section 207,
seek information about them from public sector organisations.
Subclause (1) substitutes section 85(1)(b) so that the court
must also advise the respondent that a police officer may, under
section 207, seek information about them from public sector
organisations to enable them to be served with a document under
an order for alternative service. This amendment is necessary as
clause 29 amends section 207 so that it applies for the purpose of
assisting a police officer to enable the respondent to be served
with a document under an order for alternative service.
Subclause (2) inserts a note at the foot of section 85(2) regarding
the service of documents by email.
Clause 27 amends section 122(1)(a)(ii) of the Family Violence Protection
Act 2008, so that the grounds for a respondent applying for a
rehearing where a family violence intervention order application
was not brought to their attention under an order for alternative
18
service are the same as where the application was not brought to
a respondent's attention under an order for substituted service.
Clause 28 substitutes section 202 of the Family Violence Protection
Act 2008 with new sections 202, 202A, 202B and 202C.
The amendments respond to the recommendation of the Royal
Commission to extend the ability of the Magistrates' Court and
the Children's Court to order service of applications for family
violence intervention orders and orders in the first instance other
than by personal service.
Currently, various provisions of the Family Violence Protection
Act 2008, require some documents, such as an application, a
family violence intervention order, or a family violence safety
notice, to be served on a person. Existing section 202(2)
provides that a document must be served on a person by giving
a true copy of the document to the person personally. A family
violence intervention order does not come into effect until a copy
of the order is personally served on the respondent. In practice,
police officers serve documents under the Family Violence
Protection Act 2008.
However, where it appears to the court that it is not reasonably
practicable to serve a copy of a document on a person
personally (other than a family violence safety notice), existing
section 202(3) provides that the court may order that a copy of
the document be served by any other means it considers
appropriate, or make an order for substituted service.
The Royal Commission's recommendation for changes to
personal service were aimed at increasing the safety of victims,
particularly where respondents deliberately avoid service, and
allowing police officers to spend more time on higher value
policing activities as well as reducing the increasing workload
that applications for substituted service places on the courts.
In making its recommendation, the Royal Commission sought to
ensure that service arrangements engendered a high degree of
confidence that a respondent is made aware of any family
violence intervention order made against them, as this
promotes compliance, accountability and safety.
19
New section 202
New section 202(1) provides that, subject to new section 202(2),
if a document is required under the Family Violence Protection
Act 2008 to be served on a person, the document must be served
on the person--
• by giving a true copy of the document to the person
personally; or
• if a court makes an order for alternative service under
new section 202A(1), in accordance with that order.
New section 202(2) provides that each of the following
documents must be served on a person personally--
• a family violence safety notice;
• any document that is required under the Family
Violence Protection Act 2008 to be served on a person
who is a child.
New section 202A
New section 202A(1) allows a court to order that a document be
served on a person other than personally by any means specified
in the order, if satisfied that--
• service other than personal service is likely to bring the
document to the attention of the person to be served and
will not pose an unacceptable risk to the safety of the
affected family member, protected person or any other
person; and
• it is appropriate in all the circumstances to make the
order for alternative service.
New subsection 202A(2) provides that the court may make an
order for alternative service on the application of a party to the
proceeding or on its own initiative.
In accordance with new section 202A(3), if the court makes an
order for alternative service, it may order that the document be
taken to have been served on the happening of any specified
event; or on the expiry of any specified time.
The new provision does not prescribe methods of alternative
service. This is a matter for the court to determine when
making the order, and might include methods such as serving the
20
document by post, email, or leaving it at the address of the person
to be served.
New section 202B
New section 202B establishes presumptions as to when
alternative service by post or electronic communication is
effective.
New section 202B(1) provides that subject to any order under
new section 202A(3), in the absence of evidence to the contrary,
a document is taken to have been served under an order for
alternative service--
• if the document is required to be served by prepaid post
to an address, at the time at which the document would
have been delivered in the ordinary course of post; or
• if the document is required to be served by registered
post to an address, at the time at which the document
would have been ordinarily delivered by registered post.
New section 202B(2) provides that new section 202B(1)
applies despite anything to the contrary in section 49 of the
Interpretation of Legislation Act 1984, which applies
presumptions as to effective service where an Act or subordinate
instrument authorizes or requires a document to be served by
post.
New section 202B(3) applies where an order for alternative
service requires that a document be served by electronic
communication. In this case--
• the Electronic Transactions (Victoria) Act 2000
extends and applies to service of the document, whether
or not the person to be served consented to information
being given by means of an electronic communication,
and as if the person had consented to service by
electronic communication; and
• subject to any order under new section 202A(3), in the
absence of evidence to the contrary, the document is
taken to have been served at the time of receipt referred
to in section 13A of the Electronic Transactions
(Victoria) Act 2000.
21
New section 202C
New section 202C(1) provides that if for any reason it is not
possible to serve a document in the manner required by new
section 202, a court may make an order for substituted service,
so that such steps be taken as the court specifies for the purpose
of bringing the document to the notice of the person to be served.
New section 202C(2) provides that an order may not be made
under section 202C(1) with respect to a family violence safety
notice.
Clause 29 amends section 207 of the Family Violence Protection
Act 2008, which provides for the disclosure of information by
organisations to Victoria Police.
Section 207(2) requires certain organisations to give a police
officer information about a respondent when asked to do so.
Currently, a police officer may only seek information from an
organisation under section 207(1)(b) for the purpose of assisting
a police officer to locate a respondent to enable a police officer
to serve them with a document under the Family Violence
Protection Act 2008. Section 207(3) places restrictions on the
further use and disclosure of such information by a police officer.
Subclause (1) substitutes section 207(1)(b) so that it also applies
for the purpose of assisting a police officer to enable a respondent
to be served with a document under an order for alternative
service.
Subclause (2) substitutes section 207(3)(b), so that the provision
reflects the new purpose for which a police officer may seek
information about a respondent from an organisation.
Clause 30 inserts new section 231 in the Family Violence Protection
Act 2008, which is a transitional provision for the amendments in
Division 3 of Part 2 of the Bill.
New section 231 provides that the amendments made to the
Family Violence Protection Act 2008 by Division 3 of Part 2 of
the Family Violence Protection Amendment Act 2017 apply in
relation to a proceeding for a family violence intervention order
commenced, or an appeal filed, on or after the commencement of
that Division.
22
Division 4--Other amendments to the Principal Act
Clause 31 amends a definition in section 4 of the Family Violence
Protection Act 2008.
The clause amends the definition of mention date so that it
not only applies to an application under the Family Violence
Protection Act 2008, but also to an appeal under the Act.
This amendment relates to new sections 118A and 118B,
inserted by clause 33, which provide for the strike out of an
appeal if an appellant fails to appear at a mention date or the
hearing of the appeal.
Clause 32 amends section 31 of Family Violence Protection Act 2008 in
response to the Royal Commission recommendation to stipulate
that the first mention date for a family violence safety notice
must be no later than 14 days after the notice, or form of notice,
is served on the respondent.
As well as providing temporary protection, a family violence
safety notice is taken to be an application for a family violence
intervention order by the police officer who applied for the
notice, and a summons for the respondent to attend court on the
first mention for the application.
Currently, section 31(3) provides that if a family violence safety
notice includes an exclusion condition, the first mention date
must be as soon as practicable, but in any case the first mention
date must be not later than five working days after the notice is
served on the respondent.
The recommended increase to the period within which the first
mention date must be held was based in the Royal Commission's
view that if the parties have more time to prepare for court, and
to seek appropriate support and consider legal options, the first
mention is more likely to be substantial, purposeful and effective.
Subclause (a) substitutes the requirement in section 31(3)(a) that
the first mention date for an application commenced by a family
violence safety notice that includes an exclusion condition must
be as soon as practicable, to instead require that the first mention
date must be as soon as practicable if--
• the notice includes an exclusion condition that excludes
the respondent from their primary place of residence;
and
23
• the police officer who applied for the notice believes
that the respondent may not have access to temporary
accommodation.
The purpose of this amendment is to ensure that matters where
the respondent is excluded from their primary place of residence
and may not have access to temporary accommodation are
returned to court as soon as practicable.
Subclause (b) implements the Royal Commission
recommendation, by amending section 31(3)(b) to provide that,
in any case, the first mention date for the application must be
not later than 14 days after the family violence safety notice is
served on the respondent.
Clause 33 inserts new sections 118A and 118B in the Family Violence
Protection Act 2008, in response to the Royal Commission
recommendation to legislate to permit the County Court, in
certain circumstances, to strike out an appeal where the appellant
fails to attend a pre-appeal mention.
Currently, there is no legislative power to strike out an
appeal if an appellant fails to appear. Instead, the court
relies on an inherent power to manage its own proceedings.
New section 118A provides for a legislative basis and process
for appeals to be struck out, and re-instated, if an appellant
fails to appear.
New section 118A(1) provides that an appeal may be struck out
or adjourned if an appellant fails to appear at a mention date or at
the hearing of an appeal.
New section 118A(2) includes service requirements for copies of
an order striking out an appeal and requires any decision that was
stayed as a result of an appeal to be re-instated.
New section 118A(3) enables an order striking out an appeal to
be reinstated if the failure to appear was not due to fault or
neglect on the part of the applicant.
New section 118A(4) requires an application to reinstate an
appeal to be filed within a reasonable time of the applicant
becoming aware of the order striking out an appeal.
New section 118A(5) provides that the relevant registrar must
serve an application to reinstate a struck out appeal on the parties
and any other required person.
24
New section 118A(6) requires the court to order reinstatement
of an appeal if satisfied that the failure to appear was not due to
fault or neglect on the part of the appellant.
New section 118B enables the court to reimpose a stay and
impose bail conditions on reinstating an appeal under new
section 118A(6).
New section 118B(1) provides that a court may, on reinstating an
appeal, reimpose any stay of a decision or part of a decision that
may have been ordered pending determination of the appeal.
New section 118B(2) provides that a court may, on reinstating an
appeal, impose bail conditions on the appellant in certain
circumstances.
Clause 34 inserts the following new definitions in section 126 of the Family
Violence Protection Act 2008 as a consequence of amendments
made by clause 37 relating to approval of counselling--
• Approved counselling, which is defined to mean
counselling approved under section 133; and
• Chief Executive Officer, which is defined to mean
the Chief Executive Officer of Court Services Victoria
appointed under section 22 of the Court Services
Victoria Act 2014.
Clause 35 amends section 129 of the Family Violence Protection
Act 2008 relating to orders to assess eligibility for counselling.
These amendments relate to the amendments in clause 37
regarding the approval of persons who conduct interviews and
prepare reports for the purpose of section 129.
Subclause (1) substitutes section 129(1)(a) and amends
section 129(1)(b). New section 129(1)(a) provides that if a
relevant court makes a final order in respect of a respondent,
it must make an order requiring a counselling assessor to give
a report to the relevant court, by a date specified in the order,
on whether the respondent is eligible to attend approved
counselling to address the violence that is the subject of the
order. The amendment to section 129(1)(b) substitutes the
reference to "specified person" with "counselling assessor".
Subclause (2) substitutes the reference to "counselling approved
by the Secretary under section 133" in section 129(2)(b)(i) with
"approved counselling".
25
Subclause (3) substitutes the references to "specified person" in
section 129(3) with "counselling assessor".
Subclause (4) inserts new section 129(7), which provides that a
counselling assessor means a person employed by Court Services
Victoria to prepare reports for the purposes of section 129.
Clause 36 substitutes the reference to "counselling approved by the
Secretary under section 133" in section 130 of the Family
Violence Protection Act 2008 for the new defined term
approved counselling.
Clause 37 substitutes section 133 of the Family Violence Protection
Act 2008.
Currently, section 133 provides that the Secretary to the
Department of Justice may approve--
• persons who the Secretary considers have appropriate
experience and qualifications to conduct interviews and
prepare reports for the purpose of section 129; and
• counselling that the Secretary considers appropriate to
address family violence to be provided by particular
persons or bodies for the purpose of counselling orders
made under section 130.
The effect of new section 133 is to transfer the power to
approve appropriate counselling from the Secretary to the
Chief Executive Officer of Court Services Victoria, and to
remove the requirement for the approval of persons who
conduct interviews and prepare reports for the purpose of
section 129, as the experience and qualifications of these
persons is considered as part of the recruitment process.
Clause 38 substitutes the reference to "counselling approved by the
Secretary under section 133" in section 137(1)(a)(i) of the
Family Violence Protection Act 2008 for the new defined
term approved counselling.
Clause 39 substitutes section 144 of the Family Violence Protection
Act 2008.
Currently, section 144 allows the Secretary to the Department
of Justice to delegate any of the Secretary's other powers
under Division 4 of Part 5 of the Family Violence Protection
26
Act 2008 to any person employed under Part 3 of the Public
Administration Act 2004.
New section 144 provides that the Chief Executive Officer
may delegate to another member of the staff of Court Services
Victoria any of the Chief Executive Officer's other powers
under Part 5 of the Family Violence Protection Act 2008.
Clause 40 inserts new Division 11 in Part 14 of the Family Violence
Protection Act 2008, which contains transitional provisions
for the amendments in Division 4 of Part 2 of the Bill.
New section 228 provides that in new Division 11 amending Act
means the Family Violence Protection Amendment Act 2017.
New section 229 provides that sections 118A and 118B apply
to an appeal filed on or after the commencement of section 33
of the amending Act.
New section 230 provides that on and after the commencement
of section 37 of the amending Act, any counselling that,
immediately before that commencement, was approved by
the Secretary under section 133(2), is taken to be approved
counselling within the meaning of section 126 as if it had
been approved by the Chief Executive Officer.
Division 4 of Part 2 of the Bill is intended to commence before
the other Divisions in that Part.
Clause 41 amends the definition of Secretary in section 4 of the Family
Violence Protection Act 2008, which is currently defined as
"the Secretary to the Department of Justice", so that it means
"the Secretary to the Department of Justice and Regulation",
reflecting the updated name of the department.
Part 3--Amendment of the Coroners Act 2008
Part 3 of the Bill amends the Coroners Act 2008 to establish a legislative
basis for the Victorian Systemic Review of Family Violence Deaths unit
(the VSRFVD unit), as recommended by the Royal Commission. The Part
also amends the Coroners Act 2008 to enable the Coroners Court to include
certain information relating to orders and proceedings under the Family
Violence Protection Act 2008 in its published findings, recommendations
and reports.
Clause 42 inserts a definition of the VSRFVD in section 3(1) of the
Coroners Act 2008.
27
Clause 43 inserts a new Division 1C in Part 8 of the Coroners Act 2008.
New section 102T provides that family violence has the same
meaning as in the Family Violence Protection Act 2008.
New section 102U establishes the VSRFVD unit.
New section 102V provides that the VSRFVD membership
comprises the State Coroner and any other persons appointed
by the State Coroner.
New section 102W sets out the functions of the VSRFVD, which
include examining deaths suspected to involve family violence
and identifying trends and patterns relating to deaths resulting
from family violence.
Clause 44 amends section 73 of the Coroners Act 2008 to, in particular
circumstances, enable a coroner to publish certain identifying
information about a person who is the subject of an order under
the Family Violence Protection Act 2008 or involved in a
proceeding under that Act, or about the particular court venue
that made the order or heard the proceeding.
Section 166 of the Family Violence Protection Act 2008
restricts the publication of a report containing certain information
about orders and proceedings under that Act in the Magistrates'
Court, unless a publication order is made by the court.
The publication restrictions in section 534 of the Children,
Youth and Families Act 2005 apply to orders or proceedings
under the Family Violence Protection Act 2008 made by or
held in the Children's Court. The President of the Children's
Court or, in certain more limited circumstances, a magistrate or
the Secretary to the Department of Health and Human Services
may grant permission to publish identifying information.
New section 73(2) provides that section 166 of the Family
Violence Protection Act 2008 does not apply to the
publication of any relevant information in findings, comments
and recommendations made after an inquest or investigation
(under section 73(1) or (1A) of the Coroners Act 2008), if a
coroner reasonably considers it is in the public interest to
allow the publication of the information.
New section 73(3) provides that section 534 of the Children,
Youth and Families Act 2005 does not apply to the
publication of any relevant information in findings, comments
28
and recommendations made after an inquest or investigation
(under section 73(1) or (1A) of the Coroners Act 2008) if--
• a coroner reasonably considers that it is in the public
interest to allow the publication of the information; and
• no person likely to be identified by the publication of
the information is a child.
New section 73(4) defines relevant information to mean--
• a locality or any particulars or picture likely to lead
to the identification of the particular venue of the court
for proceedings under the Family Violence Protection
Act 2008; or
• any particulars or picture likely to lead to the
identification of any person who is a party to, or a
witness in, proceedings under the Family Violence
Protection Act 2008 or who is the subject of an order
under that Act.
Clause 45 amends section 102 of the Coroners Act 2008, regarding the
annual report.
Section 102(1) provides that the State Coroner must, by
31 October each year, submit to the Attorney-General a report
containing a review of the operation of the Coroners Court
during the 12 months ending on the preceding 30 June.
New section 102(1)(ab) provides that the State Coroner must
also include in the annual report a review of the operation of
the VSRFVD during that period.
Part 4--Amendment of the County Court Act 1958
and Magistrates' Court Act 1989
Division 1--Amendment of the County Court Act 1958
Division 1 of Part 4 of the Bill amends the County Court Act 1958 to
extend the jurisdiction of the Koori Division of the County Court to include
certain family violence matters previously excluded from its jurisdiction.
These amendments respond to the Royal Commission recommendation that
the jurisdiction of the Koori Magistrates and County Courts be extended to
include offences where it is alleged that the defendant has contravened a
family violence intervention order.
29
Clause 46 amends section 4DA of the County Court Act 1958.
The amendment relates to the jurisdiction of the Koori Court
Division to deal with contraventions of sentences imposed by it,
or by another division of the County Court (including offences
constituted by such contraventions), and variations of those
sentences.
Subclause (1) amends section 4DA(b)(i) to substitute "or"
with "and". This reflects that section 4DA(b)(i) will lead into
section 4DA(c) following the amendment in subclause (2).
Subclause (2) repeals section 4DA(b)(ii). The effect of this
repeal is that the Koori Court Division of the County Court will
have jurisdiction to deal with a contravention or variation of a
sentence where the offence to which the sentence relates is a
contravention of a family violence intervention order or family
violence safety notice under the Family Violence Protection
Act 2008. The repeal will also give the Koori Court Division of
the County Court jurisdiction to deal with offences arising out of
the same conduct as that from which a contravention of such a
sentence arises.
Clause 47 amends section 4E of the County Court Act 1958.
The amendment relates to the Koori Court Division's
jurisdiction to deal with proceedings for certain offences
or hear certain appeals.
Subclause (1) amends section 4E(b)(i) by substituting "or"
with "and". This reflects that section 4E(b)(i) will lead into
section 4E(c) following the amendment in subclause (2).
Subclause (2) repeals subsection 4E(b)(ii). The effect of this
repeal is that the Koori Court Division of the County Court will
have jurisdiction to deal with contraventions of family violence
intervention orders and family violence safety notices under the
Family Violence Protection Act 2008 (and offences arising
out of the same conduct as that from which such contraventions
arise). The repeal will also give the Koori Court Division of the
County Court jurisdiction to deal with appeals against conviction
or sentence for such offences.
30
Clause 48 inserts new section 4EA in the County Court Act 1958.
New section 4EA enables a staged roll out of the Koori Court
Division's expanded jurisdiction. This gives effect to the
Royal Commission's recommendation that the exercise of such
expanded jurisdiction be subject to necessary safeguards being
in place.
New section 4EA(1) provides that the Chief Judge may specify
in the Government Gazette a venue of the court at which the
Koori Court Division may exercise the jurisdiction described in
new subsection (1)(a) to (c).
New section 4EA(2) provides that the Koori Court Division may
only exercise the jurisdiction described in new section 4EA(1)
when sitting at a venue specified by the Chief Judge in
accordance with that provision.
Clause 49 inserts new section 102 in Part VIII of the County Court
Act 1958. This is a transitional provision.
New section 102(1) provides that the amendment made to
section 4DA by section 46 of the Family Violence Protection
Amendment Act 2017 applies, on or after commencement of
that section, to a proceeding for the contravention or variation
of a sentence, or to a proceeding for an offence constituted by
such contravention, regardless of when the offence to which
the sentence relates was committed or when the contravention
occurred.
New section 102(2) provides that the amendment made to
section 4E by section 47 of the Family Violence Protection
Amendment Act 2017 applies on or after commencement of
that section, to a proceeding for a contravention of a family
violence intervention order or family violence safety notice
(or to a proceeding for an offence arising out of the same
conduct as that from which such contraventions arise), and
to appeals against conviction or sentence for such offences,
regardless of when the offence was committed and regardless
of when the sentence to which the appeal relates was imposed.
31
Division 2--Amendment of the Magistrates' Court Act 1989
Division 2 of Part 4 amends the Magistrates' Court Act 1989 to extend the
jurisdiction of the Koori Division of the Magistrates' Court to include certain
family violence matters previously excluded from its jurisdiction.
These amendments respond to the Royal Commission recommendation that
the jurisdiction of the Koori Magistrates' and County Courts be extended to
include offences where it is alleged that the defendant has contravened a
family violence intervention order.
Clause 50 amends section 4EA of the Magistrates' Court Act 1989.
The amendment relates to the jurisdiction of the Koori Court
Division to deal with contraventions of sentences imposed by
it, or by another Division of the Magistrates' Court (including
offences constituted by such contraventions), and to deal with
variations of those sentences.
Subclause (1) amends section 4EA(b)(i) to substitute "or"
with "and". This reflects that section 4EA(b)(i) will lead into
section 4E(c) following the amendment in subclause (2).
Subclause (2) repeals section 4EA(b)(ii) and (iii). The effect
of these repeals is that the Koori Court Division will have
jurisdiction to deal with a contravention or variation of a
sentence where the offence to which the sentence relates is a
contravention of a family violence intervention order or
family violence safety notice under the Family Violence
Protection Act 2008, or a contravention of a personal safety
intervention order under the Personal Safety Intervention
Orders Act 2010. The repeal will also give the Koori Court
Division of the Magistrates' Court jurisdiction to deal with
offences arising out of the same conduct as that from which a
contravention of such a sentence arises.
Clause 51 amends section 4F of the Magistrates' Court Act 1989.
The amendment relates to the jurisdiction of the Koori Court
Division to deal with proceedings for certain contravention
offences.
Subclause (1) amends section 4F(1)(b)(i) to substitute "or" with
"and".
Subclause (2) repeals section 4F(1)(b)(ii) and (iii). The effect
of these repeals is that the Koori Court Division will have
jurisdiction to deal with contraventions of family violence
32
intervention orders and family violence safety notices under
the Family Violence Protection Act 2008 and offences arising
out of the same conduct as that from which such contraventions
arise. The repeal will also give the Koori Court Division of the
Magistrates' Court jurisdiction to deal with contraventions of
personal safety intervention orders under the Personal Safety
Intervention Orders Act 2010 and offences arising out of the
same conduct as that from which such contraventions arise.
Clause 52 inserts new section 4FA in the Magistrates' Court Act 1989.
New section 4FA enables a staged roll out of the Koori Court
Division's expanded jurisdiction. This gives effect to the
Royal Commission's recommendation that the exercise of such
expanded jurisdiction be subject to necessary safeguards being
in place.
New section 4FA(1) provides that the Chief Magistrate may
specify in the Government Gazette a venue of the court at which
the Koori Court Division may exercise the jurisdiction described
in new subsection (1)(a) to (c).
New section 4FA(2) provides that the Koori Court Division may
only exercise the jurisdiction described in new section 4FA(1)
when sitting at a venue specified by the Chief Magistrate in
accordance with that provision.
Clause 53 amends Schedule 8 to the Magistrates' Court Act 1989 to insert
a new transitional provision.
New section 55(1) provides that the amendment made to
section 4EA by section 50 of the Family Violence Protection
Amendment Act 2017 applies, on or after commencement of
that section, to a proceeding for the contravention or variation
of a sentence, (or to a proceeding for an offence constituted by
such contravention), regardless of when the offence to which
the sentence relates was committed or when the contravention
occurred.
New section 55(2) provides that the amendment made to
section 4F by section 51 of the Family Violence Protection
Amendment Act 2017 applies, on or after commencement
of that section, to a proceeding for a contravention of family
violence protection order or family violence safety notice (or to
a proceeding for an offence arising out of the same conduct as
33
that from which the contravention arose), regardless of when the
offence was committed.
Part 5--Amendment of the Crimes Act 1958
Clause 54 amends section 327 of the Crimes Act 1958, which creates
the offence of failure to disclose a sexual offence committed
against a child under the age of 16 years, by inserting new
sections 327(8) and 327(9) in the Act.
The new sections respond to the recommendation of the Royal
Commission to require the Director of Public Prosecutions to
approve a prosecution for the offence in cases where the alleged
offender is a victim of family violence.
The Royal Commission had concerns about the application
of section 327, including the defence in section 327(3)(a), in
cases where the alleged offender has been subjected to family
violence. However, because the offence has only been in
force since 27 October 2014, the Royal Commission thought
repealing it would be premature. In the meantime, the approval
of any prosecution by the Director of Public Prosecutions was
recommended as well as guidelines on the exercise of the
discretion.
New section 327(8) provides that a prosecution for an offence
under section 327(2) must not be commenced without the
consent of the Director of Public Prosecutions.
New section 327(9) provides that in determining whether to
consent to a prosecution for such an offence, the Director of
Public Prosecutions must consider whether the alleged offender
has been subjected to family violence (within the meaning of
the Family Violence Protection Act 2008) that is relevant to
the circumstances in which the offence is alleged to have been
committed.
Clause 55 inserts new section 632 in the Crimes Act 1958, which is a
transitional provision for the amendments in clause 54.
New section 632 provide that section 327, as amended by
section 54 of the Family Violence Protection Amendment
Act 2017, applies to a prosecution for an offence under
section 327(2) that is commenced on or after the day on
which section 54 of that Act comes into operation irrespective
of when that offence is alleged to have been committed.
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Part 6--Amendment of the Criminal Procedure Act 2009
The amendments in this Part are in response to the Royal Commission
recommendation that consideration be given to legislative amendments
to permit the use of video- and audio-recorded evidence in family
violence-related criminal proceedings involving either adults or children.
Clause 56 amends the heading to Division 5 of Part 8.2 of the Criminal
Procedure Act 2009 to add "family violence" to the offences
and matters where recorded evidence-in-chief of children and
cognitively impaired witnesses can be used.
Clause 57 amends section 366(1) of the Criminal Procedure Act 2009 to
include in the use of recorded evidence-in-chief provisions an
offence where the conduct constituting the offence consists of
family violence within the meaning of the Family Violence
Protection Act 2008.
Clause 58 inserts a transitional provision at the end of Chapter 10 of the
Criminal Procedure Act 2009 to provide that the amended
Part 8.2 applies to a criminal proceeding that commences on or
after the day on which the Family Violence Protection
Amendment Act 2017 comes into operation.
Part 7--Amendment of Public Health and Wellbeing Act 2008
Clause 59 inserts a definition of family violence in section 3(1) of the
Public Health and Wellbeing Act 2008.
The term family violence is defined to have the same meaning
as in section 4 of the Family Violence Protection Act 2008.
The term is defined in that Act to include a wide range of
behaviours, including behaviour that is physically or sexually
abusive, emotionally or psychologically abusive, economically
abusive or coercive.
Clause 60 amends section 26 of the Public Health and Wellbeing
Act 2008, which requires a municipal council to prepare a
municipal public health and wellbeing plan within 12 months
after each general election of the council. The plan is a key
mechanism for planning and coordinating a locally based
approach to public health and wellbeing.
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Subclause (1) inserts new section 26(2)(ba) to require that a
municipal public health and wellbeing plan must specify
measures to prevent family violence and respond to the needs
of victims of family violence in the local community. This new
requirement is aimed at increasing the focus on family violence
prevention and response at a local level.
Subclause (2) inserts new section 26(4A) to require that an
annual review of a municipal public health and wellbeing plan
must include a review of the family violence measures.
Subclause (3) inserts new section 26(6A) to require a municipal
council to report to the Secretary to the Department of Health and
Human Services on the family violence measures at the intervals
specified by the Secretary by notice in writing. It is anticipated
municipal councils will be required to report during the four year
life of a municipal public health and wellbeing plan, with the
intervals to be determined with input from stakeholders.
Part 8--Repeal of Family Violence Protection
Amendment Act 2014
Clause 61 repeals the Family Violence Protection Amendment Act 2014,
in response to the Royal Commission recommendation to repeal
the unproclaimed provisions of the Act providing for interim
family violence intervention orders with an automatic finalisation
condition (self-executing orders).
In the Royal Commission's view, the accountability and
compliance of perpetrators and the safety of victims are best
assured if the parties engage with the justice system, to properly
understand their rights and responsibilities arising from the
interim order. Without this, the Royal Commission considered
that the interim order reform presents a risk of further breaches
or contests that may offset the efficiency gain that the reform
sought to achieve.
Clause 62 repeals of the definition of finalisation condition in section 4 of
the Family Violence Protection Act 2008. This definition was
inserted only for the purposes of the Family Violence Protection
Amendment Act 2014.
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Clause 63 repeals section 226(1) of the Family Violence Protection
Act 2008, which contains a transitional provision for the
interim order amendments in the Family Violence Protection
Amendment Act 2014.
Part 9--Amendments relating to the National Domestic
Violence Order Scheme Act 2016
Division 1--Amendment of National Domestic
Violence Order Scheme Act 2016
Clause 64 amends section 16 of the National Domestic Violence Order
Scheme Act 2016, which sets out the meaning of properly
notified, including when a family violence intervention order
or a variation to a recognised DVO that is done in Victoria is
properly notified under the law of Victoria.
The amendments are necessary as a result of clauses 21 and 22,
the effect of which are that the offences of contravention of a
family violence intervention order apply where a respondent has
received an oral explanation of the order in accordance with new
section 57(1) or 96(1).
Division 2--Consequential amendment of the Coroners Act 2008
Clause 65 makes consequential amendments to section 73 of the Coroners
Act 2008 to be brought into operation after the commencement
of the National Domestic Violence Order Scheme Act 2016.
These amendments apply section 73 of the Coroners Act 2008 to
information likely to lead to the identification of court venues for,
or persons involved in, certain proceedings and applications
relating to non-local DVOs.
Subclause (1) inserts new section 73(3A), which provides that
section 73 applies in relation to publication of any relevant
information relating to proceedings for the variation, extension
or revocation of a non-local DVO that is a recognised DVO or
an application under Part 7 of the National Domestic Violence
Order Scheme Act 2016 subject to--
• any law that applies to publication about the non-local
DVO in the issuing jurisdiction; and
• any order relating to publication of the non-local DVO
made by a court of the issuing jurisdiction.
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Subclause (2) substitutes section 73(4), as inserted by clause 44.
New section 73(4) contains new definitions of issuing
jurisdiction, non-local DVO, recognised DVO and relevant
information.
New section 73(4) provides that issuing jurisdiction, non-local
DVO, and recognised DVO have the same meanings as in the
National Domestic Violence Order Scheme Act 2016.
New section 73(4) defines relevant information to mean--
• a locality or any particulars or picture likely to lead
to the identification of the particular venue of the court
for proceedings under the Family Violence Protection
Act 2008 or the National Domestic Violence Order
Scheme Act 2016; or
• any particulars or picture likely to lead to the
identification of any person--
• who is a party to, or a witness in, a
proceeding under the Family Violence
Protection Act 2008; or
• who is the subject of an order under the Family
Violence Protection Act 2008; or
• who is a party to, or a witness in, a proceeding
for the variation, extension or revocation of a
non-local DVO that is a recognised DVO or
who is the subject of that non-local DVO; or
• who is the applicant for a declaration under
Part 7 of the National Domestic Violence
Order Scheme Act 2016 or who is the subject
of the non-local DVO in relation to which the
applicant is made.
Part 10--Repeal of amending Act
Clause 66 provides that the Act is repealed on 1 September 2019.
The repeal of the Bill does not affect the continuing operation
of the amendments made by the Bill.
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