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Justice Legislation Amendment (Family
Violence Protection and Other Matters)
Bill 2018
Introduction Print
EXPLANATORY MEMORANDUM
General
The Royal Commission into Family Violence report was tabled in Parliament
in March 2016. The report included 227 recommendations and was the
culmination of a 13-month inquiry into how to effectively prevent, and
respond to, family violence.
The Bill amends the Children, Youth and Families Act 2005, the Family
Violence Protection Act 2008, the Criminal Procedure Act 2009, and
the Magistrates' Court Act 1989 to support the implementation of
6 recommendations of the Royal Commission. These recommendations
relate to--
expanding the therapeutic treatment order regime; and
enacting new statutory examples of behaviour that may
constitute family violence; and
facilitating the use of an online application for family violence
intervention orders; and
empowering courts to make own motion interim family
violence intervention orders during criminal proceedings; and
establishing the Specialist Family Violence Court Division in
the Magistrates' Court; and
allowing for the use of pre-recorded evidence-in-chief in
proceedings for family violence offences.
581453 1 BILL LA INTRODUCTION 5/6/2018
The Bill also amends various Acts to strengthen the response to family
violence and to facilitate the electronic issue and transmission of court and
tribunal documents.
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill, which are--
to amend the Children, Youth and Families Act 2005
to improve the provisions for therapeutic treatment
orders; and
to amend the Family Violence Protection Act 2008 to--
to provide further examples of behaviour that
may constitute family violence; and
in relation to counselling orders, to remove the
requirement that a respondent live in a specified
postcode area to be eligible for a counselling
order and to allow the Children's Court to make
counselling orders; and
to provide further for the making of interim
orders; and
to provide for the making of applications for
family violence intervention orders by a
declaration of truth; and
to amend the Magistrates' Court Act 1989 to establish
a Specialist Family Violence Court Division; and
to amend various Acts in relation to the use of electronic
communication for court and tribunal processes and
documents; and
to amend the Family Violence Protection Act 2008
and the Personal Safety Intervention Orders
Act 2010 in relation to variations and revocations
of, and appeals in relation to, interim orders; and
to amend the Criminal Procedure Act 2009 to allow
recorded statements to be used as evidence-in-chief
in family violence offence proceedings.
2
Clause 2 provides for the commencement of the Bill.
Subclause (1) provides that Part 1, section 30, which amends
sections 164(2)(b) and 166(2)(c) of the Family Violence
Protection Act 2008, and Division 15 of Part 6 relating to
amendments to the Infringements Act 2006, come into
operation on the day after the day on which the Act receives
Royal Assent.
Subclause (2) provides that, subject to subclause (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 does not come into
operation before 1 September 2020, 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.
Part 2--Amendment of Children, Youth and Families Act 2005
Part 2 of the Bill extends the therapeutic treatment order regime to include
children aged 15 to 17 years (inclusive), in response to recommendation 34
of the Royal Commission, and makes further amendments to strengthen the
regime by enabling greater oversight by the Secretary and the Children's
Court of children on therapeutic treatment orders.
Clause 3 defines terms which will be used in the Children, Youth and
Families Act 2005, once amended. These definitions are
inserted into section 3(1) of the Act.
Clause 3(a) inserts a definition of therapeutic treatment plan to
have the meaning given in the new section 169A.
Clause 3(b) inserts a paragraph (ad) in the definition of child
to define the age of a child in respect of whom a therapeutic
treatment order or a therapeutic treatment (placement) order
may be made as a person who is of or above the age of 10 and
under the age of 18 years when the order is made.
3
Clause 3(b) also inserts new paragraph (ae) in the definition of
child to define the age of a child for the purposes of section 354A
as a person who is of or above the age of 10 years and under the
age of 18 years, when the person appears as an accused in a
criminal proceeding.
The purpose of the amendments in clause 3(b) is to extend the
therapeutic treatment order regime to children aged 10 years or
above, but under the age of 18, in response to a Royal
Commission recommendation.
Clause 4 inserts a new Division 1A of Part 4.3 in the Children, Youth
and Families Act 2005, which includes new sections 169A,
169B and 169C. The heading to new Division 1A is
"Therapeutic treatment planning".
New Division 1A introduces a prescribed case planning element
to the therapeutic treatment order regime. A therapeutic
treatment plan is distinct from a case plan prepared by the
Secretary for a child who is subject to a therapeutic treatment
(placement) order. Each plan has a separate and unique purpose
under the Children, Youth and Families Act 2005.
The purpose of a therapeutic treatment plan is to record
significant decisions and arrangements relating to a child's
participation in a therapeutic treatment program, to better support
a child who is subject to a therapeutic treatment order. A plan
must be consistent with the conditions of a therapeutic treatment
order.
New section 169A
New section 169A describes a therapeutic treatment plan.
New section 169A(1) provides that a therapeutic treatment plan
is prepared for a child subject to a therapeutic treatment order.
The Secretary is required to prepare the plan as prescribed in new
section 169B. New section 169A(2) requires that a therapeutic
treatment plan must contain all decisions and arrangements made
by the Secretary concerning the child that--
the Secretary considers to be significant; and
relate to the child's participation in and attendance at
the therapeutic treatment program.
4
New section 169B
New section 169B provides for timeframes within which a
therapeutic treatment plan must be prepared by the Secretary,
and copies provided to certain prescribed people.
New section 169B(1) provides that the Secretary must ensure
that a therapeutic treatment plan is prepared in respect of a child
within 6 weeks after the Court makes a therapeutic treatment
order.
New section 169B(2) provides that the Secretary must ensure that
a copy of the therapeutic treatment plan is given, within 14 days
of its preparation, to--
the child to whom the therapeutic treatment order
applies; and
the child's parent; and
any person who has care of the child; and
the provider of the therapeutic treatment program.
New section 169B(2)(c) provides that a copy of the therapeutic
treatment plan must be provided to any person who has care
of the child. The term "care" is defined in section 3(1) of the
Children, Youth and Families Act 2005.
New section 169B(3) provides that the Secretary is not
required to comply with section 169B(2), if the Secretary is
satisfied that it would be inappropriate to provide a copy of
a therapeutic treatment plan to a person or provider prescribed
in subsection (2).
The purpose of this amendment is to give the Secretary a
discretion to determine when it would be inappropriate to
provide a copy of a therapeutic treatment plan to a prescribed
party. The Secretary may consider it to be inappropriate to
provide a copy of a plan in circumstances including, but not
limited to, when a parent of a child is a perpetrator of family
violence, where it would be contrary to an information sharing
scheme, or where a child subject to a therapeutic treatment
order is over the age of 18 years.
5
New section 169C
New section 169C provides that the Secretary must review a
therapeutic treatment plan, and specifies the timeframe for
undertaking a review.
New section 169C(1) provides that a therapeutic treatment
plan must specify a date for the review of a plan that is halfway
through the period of the therapeutic treatment order to which
the plan relates.
New section 169C(2) provides that the Secretary must review a
therapeutic treatment plan--
on or before the review date specified in the plan; and
from time to time as otherwise appears necessary.
New section 169C(3) provides that the Secretary must ensure that
the results of the review of the therapeutic treatment plan, and
any amendments made to the plan, are provided within 14 days
of the review, to each of the persons who received a copy of the
plan, being--
the child to whom the therapeutic treatment order
applies; and
the child's parent; and
any person who has care of the child; and
the provider of the therapeutic treatment program.
New section 169C(4) provides that the Secretary is not
required to comply with section 169C(3), if the Secretary is
satisfied that it would be inappropriate for the results of a
review of, and any amendments to, a therapeutic treatment plan
be given to a person or provider prescribed in subsection (3).
The purpose of the amendment is to provide consistency with
new section 169B(3).
Clause 5 amends section 185 of the Children, Youth and Families
Act 2005 ("Report on child in need of therapeutic treatment")
to remove "who is 10 years of age or over but under 15 years
of age".
The purpose of this amendment is to allow the new definition of
child in section 3(1), pursuant to new paragraph (ad) and detailed
in clause 3(b), to apply.
6
Clause 6 substitutes section 244 of the Children, Youth and Families
Act 2005 ("When is a child in need of therapeutic treatment?")
to provide that--for the purposes of Division 3 of Part 4.8, a
child is in need of therapeutic treatment if the child has exhibited
sexually abusive behaviours.
The purpose of the amendment is to allow the new definition of
child to apply.
Clause 7 amends section 248 of the Children, Youth and Families
Act 2005 ("When Court may make order under this Division")
to clarify when a Court may make a therapeutic treatment
order under Division 3 of Part 4.8 of the Children, Youth
and Families Act 2005.
Subclause (1) amends section 248 to remove "of or over the age
of 10 years and under the age of 15 years".
The purpose of this amendment is to allow the new definition of
child to apply.
Subclause (2) inserts new section 248(2) of the Children,
Youth and Families Act 2005 to require the Court, when
deciding whether or not to make a therapeutic treatment order
in respect of a child, to consider--
the seriousness of the child's sexually abusive
behaviours; and
any previous history of sexually abusive behaviours of
the child and how those behaviours were addressed; and
the particular characteristics and circumstances of the
child; and
any other matters the Court considers relevant.
Clause 8 inserts new section 249(2)(ba) in the Children, Youth and
Families Act 2005 ("Therapeutic treatment order") to enable
the Court to include a condition in a therapeutic treatment order
requiring the Secretary to report to the Family Division of the
Court at a time or times specified by the Court, on a child's
progress and attendance at a therapeutic treatment program.
7
Clause 9 inserts new sections 250(2) and 254(2) in the Children, Youth
and Families Act 2005 to specify when a therapeutic treatment
order and therapeutic treatment (placement) order expires.
Subclause (1) inserts new section 250(2) which provides that a
therapeutic treatment order remains in force for the duration of
the order, and continues to apply, even if the child turns 18 years
of age after the therapeutic treatment order is made.
The purpose of the amendment is to ensure that a child who is
subject to a therapeutic treatment order would not have their
treatment unduly shortened due to, or by virtue of, the child
turning 18 years of age.
Subclause (2) inserts new section 254(2) which provides that
a therapeutic treatment (placement) order ceases to be in force
upon a child attaining the age of 18 years, or when a child
marries, whichever happens first.
A therapeutic treatment (placement) order grants parental
responsibility for a child to the Secretary, but does not
otherwise affect parental responsibility for a child (section 253).
The purpose of the amendment is to provide consistency within
the Children, Youth and Families Act 2005 regarding the
expiry of orders that grant parental responsibility for a child
to the Secretary. Other orders that confer parental responsibility
for a child on the Secretary include a family reunification
order (section 287(1)(a)) and a care by Secretary order
(section 289(1)(a)). These orders expire upon a child turning
18 years of age, or marrying, whichever happens first.
Clause 10 inserts new section 256(1A) and (4) in the Children, Youth
and Families Act 2005 ("Extension of order") to describe
when a therapeutic treatment order or a therapeutic treatment
(placement) order that has been extended by the Court expires.
Subclause (1) inserts new section 256(1A) which provides that,
when the Court has extended a therapeutic treatment order for a
period not exceeding 12 months, the therapeutic treatment order
remains in force for the period of the extended order, even if the
child has turned 18 years of age before the order was extended,
or will turn 18 years of age during the period of the extension.
8
The purpose of the amendment is to provide that a therapeutic
treatment order which has been extended by the Court will not be
unduly shortened by reason of a child turning 18 years of age.
Subclause (2) inserts new section 256(4) which provides that,
when the Court has extended a therapeutic treatment (placement)
order for a period not exceeding 12 months, the therapeutic
treatment (placement) order ceases to be in force upon a child
turning 18 years of age, or marries, whichever happens first.
The amendment is consistent with the new section 254(2), which
is inserted by clause 9(2).
Clause 11 inserts new section 349(3) in the Children, Youth and Families
Act 2005 to provide that when a child appears as an accused in
a criminal proceeding in the Court, and the Court considers there
is prima facie evidence that grounds exist for the making of a
therapeutic treatment order, the Court must consider certain
factors when deciding whether to refer a matter to the Secretary
for investigation into the best pathway for a child's treatment.
In deciding whether or not to refer a matter to the Secretary, the
Court must consider--
the seriousness of the child's sexually abusive
behaviours; and
any previous history of sexually abusive behaviours of
the child and how those behaviours were addressed; and
the particular characteristics and circumstances of the
child; and
any other matters the Court considers relevant.
Clause 12 inserts new section 352A in the Children, Youth and Families
Act 2005 to provide that the Criminal Division of the Court may
require the Secretary to report to the Court on a child's progress
during the period of a therapeutic treatment order.
New section 352A(1) provides that if a therapeutic treatment
order has been made in respect of a child, the Court may require
the Secretary to report to the Criminal Division of the Court, at
the time or times specified by the Court, on the child's progress
and attendance at the therapeutic treatment program.
9
New section 352A(2) provides that the Court may require the
Secretary to make such a report to the Court--
when adjourning criminal proceedings under
section 352; or
at any other time during the period of the therapeutic
treatment order when the Court is exercising the
jurisdiction of the Criminal Division in relation to
the child.
New section 352A(3) provides that the Criminal Division of
the Court may direct the Secretary to provide a copy of the
Secretary's report to the child and to the prosecutor.
Clause 13 amends section 354A(1)(a) of the Children, Youth and
Families Act 2005 ("Powers of Court in criminal proceedings
if child accused voluntarily participates in therapeutic treatment
program") to remove "of or above the age of 10 years and under
the age of 15 years".
The purpose of this amendment is to allow the new definition of
child in section 3(1), pursuant to new paragraph (ae) detailed in
clause 3(b), to apply.
Part 3--Amendment of Family Violence Protection Act 2008
Part 3 of the Bill amends the Family Violence Protection Act 2008 in
response to Royal Commission recommendations. These amendments--
insert further examples of behaviour that may constitute
family violence; and
provide for the making of family violence intervention orders
by a declaration of truth, so as to enable applications to be
commenced online; and
empower the courts to making interim family violence
intervention orders, on their own motion, in criminal
proceedings.
The Bill also makes other amendments to the Family Violence Protection
Act 2008, including to--
remove the requirement that a respondent live in a specified
postcode area to be eligible for a counselling order; and
10
create a mechanism to empower the Children's Court to make
counselling orders; and
enable police to seek an interim family violence intervention
order by electronic communication at any time and from any
location.
Clause 14 defines terms which will be used in the Principal Act, once
amended. These definitions are inserted into section 4 of the
Family Violence Protection Act 2008.
Subclause (1) inserts a definition of declaration of truth which
means a declaration that complies with section 43(4) of the
Family Violence Protection Act 2008, made by an applicant
in an application for a family violence intervention order under
section 43(1)(c).
Subclause (2) amends the definition of court to include, in
relation to an interim order made under Division 2A of Part 4
of the Family Violence Protection Act 2008, the court hearing
the criminal proceeding in which the order is made.
Division 2A of Part 4 of the Family Violence Protection
Act 2008 is inserted by clause 22 of this Bill. The new
Division 2A empowers a court hearing an application or appeal
relating to bail, or hearing a criminal proceeding, to make an
interim order against an accused to protect a family member of
the accused, on its own motion, if the court is satisfied, on the
balance of probabilities, that the interim order is necessary to
ensure the safety of the family member pending a decision about
a final order.
Clause 15 amends the examples at the foot of the definition of family
violence in section 5(1) of the Family Violence Protection
Act 2008. The amendment addresses recommendation 156
of the Royal Commission.
Paragraph (a) of clause 15 inserts a new example of what
constitutes family violence within the meaning of paragraph (a)
of the definition of that term in section 5(1) of the Family
Violence Protection Act 2008.
11
Paragraph (a) of section 5(1) of the Family Violence Protection
Act 2008 provides that, for the purposes of the Family Violence
Protection Act 2008, family violence is behaviour by a person
towards a family member of that person if that behaviour--
is physically or sexually abusive; or
is emotionally or psychologically abusive; or
is economically abusive; or
is threatening; or
is coercive; or
in any other way controls or dominates the family
member and causes that family member to feel fear
for the safety or wellbeing of that family member or
another person.
The new examples provide that the following behaviour may
constitute family violence under paragraph (a) of section 5(1)--
using coercion, threats, physical abuse or emotional
or psychological abuse to cause or attempt to cause a
person to enter into a marriage;
using coercion, threats, physical abuse or emotional
or psychological abuse to demand or receive dowry,
either before or after a marriage.
Paragraph (b) of clause 15 inserts a '2' in front of the existing
example in clause 5(1), which is a consequential amendment as
a result of the insertion of the new examples by paragraph (a) of
clause 15.
Clause 16 amends the definition of an interim order in section 11(3)(a) of
the Family Violence Protection Act 2008. Section 11 of the
Family Violence Protection Act 2008 provides that a family
violence intervention order includes an interim order referred to
in section 11(3). The amendment expands the definition of an
interim order referred to in section 11(3) to include an interim
order made under section 60B or 60C of the Family Violence
Protection Act 2008, as inserted by clause 22 of this Bill.
12
Clause 17 amends section 43 of the Family Violence Protection Act 2008
("How application is to be made") to provide that an application
for a family violence intervention order may be made by
electronic communication.
Subclause (1) amends section 43(1)(c) by inserting "or by
declaration of truth". This amendment enables an applicant,
who is not a police officer, to make an application for a
family violence intervention order by oath, by affidavit, or
by declaration of truth. The Oaths and Affirmations Act 2018,
will also insert "or by affirmation" in section 43(1)(c) of the
Family Violence Protection Act 2008 to clarify that an
application can be made by affirmation.
The purpose of the amendment is to enable an application for a
family violence intervention order, executed by a declaration of
truth, to be filed with the Court online. The amendment responds
to recommendation 74 of the Royal Commission.
A declaration of truth is distinguishable from an oath, affidavit,
affirmation, statutory declaration or other declaration, as it is
not required to be witnessed or executed before a third party.
The use of a declaration of truth is limited to an application for
a family violence intervention order by an applicant who is not
a police officer.
Subclause (2) inserts new section 43(3) of the Family Violence
Protection Act 2008 to clarify that an application for a family
violence intervention order may be made by telephone, fax or
other forms of electronic communication, unless otherwise
provided in the court rules.
Section 43 is silent as to the form of an application for a family
violence intervention order. As clause 18 repeals section 44
(which allows police to make an application that seeks an interim
order by electronic communication after hours or from remote
areas), new section 43(3) makes it clear that police can seek an
interim family violence intervention order by electronic
communication.
13
Subclause (2) inserts new section 43(4) to provide that a
declaration of truth--
must include the applicant's full name and date of birth;
must include an acknowledgment that the content of
the application is true and correct to the best of the
applicant's knowledge and belief;
must include an acknowledgment that the applicant
knows that making a declaration of truth that the
applicant knows to be false is an offence with a penalty
of 600 penalty units or 5 years' imprisonment or both;
must otherwise comply with any requirements of the
rules of court (if any); and
is not required to be witnessed by, or executed before,
any other person.
The purpose of the amendment is to describe the new declaration
of truth. An application for a family violence intervention order
that is made by a declaration of truth, could be completed online
or in paper form.
The requirement prescribed in new section 43(4)(b), that an
applicant must acknowledge that the contents of their application
is true and correct to the best of their knowledge and belief, and
the requirement prescribed in new section 43(4)(c), that the
applicant must acknowledgment that they know that making a
declaration of truth they know to be false is an offence with a
penalty of 600 penalty units or 5 years' imprisonment or both,
could be satisfied by an applicant being required to complete
tick boxes on the application form acknowledging that they
understand these requirements.
Clause 18 repeals section 44 of the Family Violence Protection Act 2008,
which allows police to make an application that seeks an interim
family violence intervention order by electronic communication
either after normal court hours, or where it is impracticable to
make an application in person due to the distance from the
nearest venue of the court.
The amendment enables police to seek an interim family violence
intervention order by electronic communication at any time and
from any location, in order to streamline and expedite the process
for making interim orders, both for the court and for police.
14
Clause 19 inserts new subsections (2), (3) and (4) in section 53AB of the
Family Violence Protection Act 2008.
Section 53AB provides that if the court does not make an interim
order under section 53(1) of the Family Violence Protection
Act 2008 in relation to an affected family member, the court
may, on its own initiative, make an interim order for a child 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.
New section 53AB(2) clarifies that an interim order made under
section 53AB is an order in the proceeding under section 53 and,
for the purposes of any proceeding for any final order under
section 74 or 76--
the applicant for the final order is--
the affected family member who made the initial
application referred to in section 53(1); or
if the affected family member did not make
the application referred to in section 53(1),
the person who made the application on
behalf of the affected family member; or
if neither subparagraph (i) or (ii) apply, in
accordance with subsection (3), the Chief
Commissioner of Police; and
the child is a party to the proceeding; and
the respondent to the initial application referred to in
section 53(1) is a party to the proceeding; and
any application for the final order may be dealt with
in accordance with the Family Violence Protection
Act 2008 in the same way as any other application; and
the application for the final order in respect of the
child is not affected by the initial application referred
to in section 53(1) being struck out or withdrawn.
15
In making an interim order under section 53AB, new
section 53AB(3) allows the court to appoint the Chief
Commissioner of Police to be the applicant for any final
order in respect of the child if satisfied--
the Chief Commissioner of Police is not a person
referred to in subsection (2)(a)(ii); and
the appointment is necessary in all the circumstances,
having regard to the child's safety.
If the court appoints the Chief Commissioner of Police to be
the applicant for any final order in respect of a child, new
section 53AB(4) provides that the court must ensure that the
Chief Commissioner of Police is given--
a copy of the interim order which makes that
appointment; and
a copy of the application referred to in section 53(1).
Clause 20 amends section 55(1) of the Family Violence Protection
Act 2008 regarding the evidentiary requirements for making
interim family violence intervention orders in relation to
applications that are made by electronic communication.
Subclause (1) amends section 55(1)(b) of the Family Violence
Protection Act 2008 to omit the reference to applications made
under section 44, as a result of the repeal of that section.
Subclause (2) inserts new section 55(1A) of the Family Violence
Protection Act 2008 which allows the court to waive the
requirement under section 55(1)(a) that an application for an
interim family violence intervention order be supported by oral
evidence or an affidavit if--
the applicant is a police officer and the application is
made by electronic communication--
provided that the court has considered whether
it is practicable to obtain oral evidence or an
affidavit before making the interim order; or
if the application is made outside normal court
hours (that is, before 9 a.m. or after 5 p.m. on a
weekday or on a Saturday, Sunday or a public
16
holiday) and the application was certified in
accordance with section 43(2); or
the applicant is not a police officer and the application
is made by a declaration of truth, provided the court
has considered whether it is practicable to obtain oral
evidence or an affidavit before making the interim
order.
The purpose of the amendment is to ensure that the evidentiary
requirements for making an interim family violence intervention
order can continue to be waived--
in the same circumstances as previously set out at
section 44 (that is, if an application is made from
a remote area or outside normal court hours), as a
result of the repeal of that section; and
in relation to applications that are made by police
by electronic communication at any other time, or
applications that are made by declaration of truth,
due to the amendments to section 43.
Clause 21 amends section 58 of the Family Violence Protection Act 2008
to clarify that section 58 only applies to applications made by
electronic communication where the applicant is a police officer.
Clause 22 inserts a new Division 2A in Part 4 of the Family Violence
Protection Act 2008. The new Division 2A of Part 4 makes
provision for courts to make interim orders, on their own
motion, in bail proceedings or criminal proceedings, responding
to recommendation 79 of the Royal Commission.
New section 60A
New section 60A defines an application or appeal relating to
bail for the purposes of the new Division 2A.
New section 60B
New section 60B provides for the making of own motion interim
orders by a court hearing an application or appeal relating to bail.
New section 60B(1) provides that, subject to new section 60B(3),
a court hearing an application or appeal relating to bail may
make an interim order against the accused to protect a family
17
member of the accused if the court is satisfied, on the balance
of probabilities, that the interim order is necessary to ensure the
safety of the family member pending a decision about a final
order.
New section 60B(2) provides that a court may make an interim
order under the new section 60B on its own motion.
New section 60B(3) provides that the court must not make an
interim order to protect a family member of the accused if--
there is an existing family violence intervention order
that protects that family member from the accused; or
an application for a family violence intervention order
that protects that family member from the accused has
been made but not finally determined.
New section 60C
New section 60C provides for the making of own motion interim
orders by courts hearing a criminal proceeding.
New section 60C(1) provides that, subject to new section 60C(4),
a court hearing a criminal proceeding may make an interim order
against an accused to protect a family member of the accused if
the court is satisfied, on the balance of probabilities, that the
interim order is necessary to ensure the safety of the family
member pending a decision about a final order.
New section 60C(2) provides that a court may make an interim
order under new section 60C on its own motion.
New section 60C(3) provides that the court may make an interim
order under new section 60C(1)--
at any stage of the criminal proceeding, including
during any committal hearing, any trial, any sentencing
hearing or any appeal; and
whether or not the person accused is found guilty of the
offence; and
whether or not the charge is withdrawn or the
prosecution of the offence discontinued.
18
New section 60C(4) provides that the court must not make an
interim order to protect a family member of the accused if--
there is an existing family violence intervention order
that protects that family member from the accused; or
an application for a family violence intervention order
that protects that family member from the accused has
been made but not finally determined.
New section 60D
New section 60D addresses the role of the prosecutor in any
criminal proceeding in which an interim order is made or
proposed to be made under new Division 2A of Part 4.
New section 60D(1) provides that the prosecutor in any criminal
proceeding in which an interim order is made or proposed to be
made under new Division 2A is not a party to the proceeding, and
has no standing or status in the proceeding, only for the purposes
of the making of the interim order.
New section 60D(2) provides that nothing in subsection (1)
affects the status, function or standing of a prosecutor in relation
to the criminal proceeding other than the making of the interim
order.
New section 60E
New section 60E addresses material before the court for the
making of interim orders under the new Division 2A of Part 4.
New section 60E(1) provides that nothing in Division 3 or 3A of
Part 4 of the Family Violence Protection Act 2008 applies to
the making of an interim order under new section 60B or 60C.
Division 3 contains provisions relating to proceedings for family
violence intervention orders and Division 3A contains provisions
regarding assessment reports in the Children's Court.
New section 60E(2) provides that an interim order under new
section 60B or 60C must be made on the material before the
court in the hearing of the application or appeal relating to bail,
or the criminal proceeding.
19
New section 60F
New section 60F provides for the making of interim orders
to protect a child if an interim order is made under the new
section 60B or 60C.
New section 60F(1) provides that the new section 60F applies
if--
the court makes an interim order under the new
section 60B or 60C in relation to a family member
of the accused; and
the court is satisfied, on the balance of probabilities,
that a child has been subjected to family violence
committed by the accused.
New section 60F(2) provides that, subject to subsection (3), the
court must--
if the child's need for protection is substantially the
same as that of the family member to be protected
by the interim order, include the child in the interim
order as a protected person; or
in any other case, make a separate interim order for
the child as a protected person.
New section 60F(3) provides that 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 decision about a final order.
New section 60G
New section 60G provides for oral explanations of interim orders
made under new Division 2A of Part 4.
New section 60G(1) provides that if the court makes an interim
order under new Division 2A and the accused or the protected
person, or both, are before the court, the court must give the
accused and the protected person (as the case requires) a clear
oral explanation of the matters referred to in section 57(1) of the
Family Violence Protection Act 2008. The matters referred to
in section 57(1) are as follows--
20
the purpose, terms and effect of the interim order;
the consequences and penalties that may follow if the
respondent fails to comply with the terms of the interim
order;
that the interim order may be enforced against the
respondent in another State or a Territory under the
National Domestic Violence Order Scheme Act 2016
and corresponding DVO recognition laws; and
when the interim order expires and the means by which
the interim order may be varied;
for the respondent, that the interim order is a civil order
of the court and the affected family member cannot give
permission to contravene the order;
the process for deciding the final order;
how the order interacts with a Family Law Act order
or an order under the Children, Youth and Families
Act 2005;
if the court has varied, suspended, revoked or revived
a Family Law Act order because it is inconsistent with
the interim order, the purpose, terms and effect of the
variation or suspension;
any relevant family violence services offering legal,
emotional or practical support that may be available
to the affected family member or respondent.
New section 60G(2) provides that if the court makes an interim
order under new Division 2A against an accused who is a child
and the accused or the protected person, or both, are before the
court, the court must give the accused and the protected person
(as the case requires) a clear oral explanation of the matters
referred to in section 57A(2) of the Family Violence Protection
Act 2008. The matters referred to in section 57A(2) are the same
as those referred to in section 57(1), which are set out above.
New section 60G(3) provides that a failure by the court to give
an oral explanation in accordance with the new section 60G does
not affect the validity of the interim order.
21
New section 60H
New section 60H provides for documents to be given to an adult
accused who is before the court when an interim order is under
new Division 2A of Part 4. It provides that if the court makes an
interim order under new Division 2A and the accused is before
the court and is an adult, the court must give the accused--
a copy of the interim order; and
a brief written statement of the reasons for making
the interim order; and
a written notice of the matters referred to in
section 57(1) of the Family Violence Protection
Act 2008 in the form prescribed by the court rules
of the court making the interim order.
A note is inserted at the foot of the requirement, in new
section 60H(a), for the court to give the accused a copy of the
interim order. The note refers to section 201 of the Family
Violence Protection Act 2008 regarding provision of the
interim order. Section 201 is amended by clause 31 of this
Bill to, among other things, require that a copy of an interim
order made under new Division 2A of Part 4 must be served
on the respondent, unless the respondent is an adult and has
been given an oral explanation of the order, in which case the
respondent must be given a copy of the order.
New section 60I
New section 60(I) provides for the service of an interim order
and other documents on an accused who is not before the court
when the order was made or an accused who is a child as well
as the person protected by the order.
New section 60I(1) provides that the appropriate registrar for
the court must arrange for the accused who is not before the
court or who is a child to be served with--
a copy of the interim order; and
a brief written statement of the reasons for making
the interim order; and
22
a written notice of the matters referred to in
section 57(1) or 57A(2), as the case requires, of
the Family Violence Protection Act 2008 in
the form prescribed by the court rules of the
court making the interim order.
New section 60I(2) provides that the appropriate registrar for the
court must arrange for the protected person to be served with--
a copy of the interim order; and
a brief written statement of the reasons for making
the interim order; and
a written notice of the matters referred to in
section 57(1) or 57A(2) of the Family Violence
Protection Act 2008, as the case requires, in the
form prescribed by the rules of the court making
the interim order.
A note is inserted at the foot of new section 60I referring to
section 201 of the Family Violence Protection Act 2008
regarding provision of the interim order. Section 201 is
amended by clause 31 of this Bill to require that a copy of an
interim order made under new Division 2A of Part 4 must be--
served on the respondent, unless the respondent is an
adult and has been given an oral explanation of the
order, in which case the respondent must be given a
copy of the order; and
given to a parent of the child (other than the respondent)
with whom the child normally or regularly lives, if the
protected person is a child; and
served on the protected person.
New section 60J
New section 60J provides for interim orders to be taken to be
applications for a family violence intervention order under the
Family Violence Protection Act 2008 and to be treated as
such for the purposes of that Act.
23
If an interim order is made under new section 60B or 60C then,
for the purposes of the Family Violence Protection Act 2008--
the interim order is taken to be--
an application for a family violence intervention
order; and
a summons for the accused to attend the relevant
court at the first mention date stated in the
order for the application for a family violence
intervention order; and
the Chief Commissioner of Police is taken to be the
applicant in relation to the application; and
any interim order made under new section 60F(2)(b) is
taken to form part of the application; and
the application may be withdrawn or otherwise dealt
with as an application in accordance with the Family
Violence Protection Act 2008.
New section 60K
New section 60K provides for the transfer of proceedings for a
final order commenced by the making of an own motion interim
order from the higher to the lower courts for final determination.
New section 60K(1) provides that if an interim order is made by
the Supreme Court or the County Court under new section 60B
or 60C, the proceeding for the final order is transferred to the
Magistrates' Court or Children's Court (as the case requires) for
determination.
New section 60K(2) provides that, on an application under
Division 8 of Part 4 of the Family Violence Protection
Act 2008, the Magistrates' Court or the Children's Court (as the
case requires) may revoke or vary an interim order made by the
Supreme Court or County Court under new section 60B or 60C
as if the order had been made by that court.
New section 60L
New section 60L provides for a mention date and hearing for
a proceeding for a final order in relation to the making of an
interim order under new Division 2A of Part 4. It provides
24
that if an interim order is made under new Division 2A, the
Magistrates' Court or the Children's Court (whichever is hearing
the proceeding for the final order) must ensure that--
the proceeding for the final order is listed for mention--
if the accused was before the court when the
interim order was made, within 14 days of the
making of the order; or
otherwise, within 14 days of the interim order
being served on the accused; and
the hearing to determine the final order is listed as soon
as practicable.
Clause 23 inserts new subsection (3) in section 77B of the Family Violence
Protection Act 2008.
Section 77B(1) provides that if the court does not make a final
order under section 74 of the Family Violence Protection
Act 2008 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.
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
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.
25
New section 77B(3) clarifies that a final order made under
subsection (1) or (2) is an order in the proceeding under
section 74 or 76, as the case requires, and for that purpose--
in the case of a final order referred to in subsection (1)
or (2)(a), the applicant for the final order is--
the affected family member who made the initial
application referred to in section 53(1), 74 or 76,
as the case requires; or
if the affected family member did not make the
initial application referred to in section 53(1),
74 or 76, the person who made that application
on behalf of the affected family member; or
if an appointment has been made under new
section 53AB(3), the Chief Commissioner of
Police; and
in the case of a final order referred to in subsection
(2)(b), the applicant for the final order is the additional
applicant under section 76(2); and
the child is a party to the proceeding; and
the respondent to the initial application referred to in
section 53(1), 74 or 76, as the case requires, is a party
to the proceeding.
Clause 24 makes a consequential amendment to section 123(1)(b) of the
Family Violence Protection Act 2008 to insert a reference to
new section 60G(1) inserted by clause 22 of this Bill.
Section 123 of the Family Violence Protection Act 2008 makes
it an offence to contravene a family violence intervention order.
Section 123(1)(b) provides that section 123 applies if a person
against whom a family violence intervention order has been made
has had an explanation of the order given to them in accordance
with section 57(1) or 96(1) of the Family Violence Protection
Act 2008. Otherwise, in accordance with section 123(1)(a), a
person must have been served with a copy of the order for the
contravention offence to apply.
New section 60G(1) provides that if a court makes an interim
order under new Division 2A of Part 4 and the accused or the
protected person, or both, are before the court, the court must
26
give the accused and the protected person (as the case requires) a
clear oral explanation of the matters referred to in section 57(1)
of the Family Violence Protection Act 2008.
The amendment in clause 24 ensures that the offence created
by section 123 applies to an adult accused if an interim order
is made under the new section 60B or 60C, as inserted by
clause 22 of this Bill, and an explanation of the order is provided
in compliance with new section 60G(1).
Clause 25 makes a consequential amendment to section 123A(2)(b) of the
Family Violence Protection Act 2008 to insert a reference to
new section 60G(1) inserted by clause 22 of this Bill.
Section 123A of the Family Violence Protection Act 2008
makes it an offence for a person to contravene a family violence
intervention order intending to cause harm or fear for safety.
Section 123A(2)(b) provides that section 123A applies if a person
against whom a family violence intervention order has been made
has had an explanation of the order given to them in accordance
with section 57(1) or 96(1) of the Family Violence Protection
Act 2008. Otherwise, in accordance with section 123A(2)(a), a
person must have been served with a copy of the order for the
contravention offence to apply.
New section 60G(1) provides that if a court makes an interim
order under new Division 2A of Part 4 and the accused or the
protected person, or both, are before the court, the court must
give the accused and the protected person (as the case requires) a
clear oral explanation of the matters referred to in section 57(1)
of the Family Violence Protection Act 2008.
The amendment in clause 25 ensures that the offence created by
section 123A applies to an adult accused if an interim order is
made under new section 60B or 60C, as inserted by clause 22
of this Bill, where a clear oral explanation has been provided in
compliance with new section 60G(1).
Clause 26 amends the definition of relevant court in section 126 of the
Family Violence Protection Act 2008. Section 126 defines a
relevant court for the purposes of Part 5 of the Family Violence
Protection Act 2008, which provides for a relevant court to
make orders--
to assess the eligibility of certain respondents for
counselling; and
27
if appropriate, to require a respondent to attend
counselling to increase the respondent's accountability
for the violence the respondent has used against a
family member and encourage the respondent to change
their behaviour.
The amendment widens the ambit of the current definition of a
relevant court to include the Children's Court sitting at a venue
of the Court specified by the Minister by notice published in the
Government Gazette. This amendment is intended to create a
mechanism to enable the Children's Court to be empowered to
make counselling orders under Part 5 of the Family Violence
Protection Act 2008.
Clause 27 substitutes section 128 of the Family Violence Protection
Act 2008. The effect of the amendment is to remove the
restriction limiting the application of Part 5 of the Family
Violence Protection Act 2008 to respondents whose place of
residence when the family violence the subject of a final order
was committed is within a postcode area specified, in relation
to the venue of the court at which the final order is made, by
the Minister by notice published in the Government Gazette.
Clause 28 amends section 153(1)(b) and (2) of the Family Violence
Protection Act 2008 ("Certification") to amend the penalty for
a person who certifies a document under the Family Violence
Protection Act 2008 that a person knows to be false in any
particular, from 120 penalty units, to 600 penalty units or 5 years'
imprisonment, or both.
The purpose of the amendment is to align this penalty with
the new penalty for knowingly making a false statement in a
declaration of truth, as provided for by new section 153A,
inserted by clause 29.
Clause 29 inserts new section 153A in the Family Violence Protection
Act 2008 with the heading "Offence to make false declaration
of truth".
New section 153A provides that a person must not knowingly
make a false statement in a declaration of truth, as described in
new section 43(4) inserted by clause 17(2), and doing so may
incur the penalty of 600 penalty units or 5 years' imprisonment
or both.
28
The penalty is consistent with the penalty for making a statement
in a statutory declaration that a person knows to be untrue
pursuant to the new Oaths and Affirmations Act 2018.
Clause 30 contains statute law amendments to sections 96(3A), 164
and 166 of the Family Violence Protection Act 2008.
These amendments arise from the enactment of the National
Domestic Violence Order Scheme Act 2016.
The amendment to section 96(3A) corrects an incorrect reference
to an interim order which should be a reference to a final order.
The amendment to section 164(2)(b) addresses a required
reference to the new defined terms used in the National
Domestic Violence Order Scheme Act 2016 and replaces
a redundant reference to "corresponding interstate order".
The amendment made by the National Domestic Violence
Order Scheme Act 2016 failed because the text to be amended
was not correctly cited.
The amendment to section 166(2)(c) corrects a punctuation error
by omitting an unnecessary full stop.
Clause 31 amends section 201 of the Family Violence Protection Act 2008
to make provision for the service of interim orders made under
new Division 2A of Part 4.
The effect of the amendments is to require the appropriate
registrar for the court that makes an interim order under new
Division 2A--
to serve a copy of the interim order on the respondent,
unless they have been given an explanation of the order
under new section 60G(1);
if the respondent is not required to be served with a
copy of the interim order, to give them a copy of the
order;
if the protected person is a child, to give a copy of the
interim order to a parent of the child (other than the
respondent) with whom the child normally or regularly
lives; and
to serve a copy of the interim order on the protected
person.
29
Clause 32 inserts new section 209(2)(ca) into the Family Violence
Protection Act 2008 to enable the Chief Magistrate, together
with 2 or more Deputy Chief Magistrates, to make rules
with respect to processes and procedures for making and filing
applications for family violence intervention orders in the
Magistrates' Court. The rules may include, but are not limited
to--
making and filing applications by electronic
communication; and
providing for different requirements, procedures or
processes regarding applications made during court
hours, after hours or in remote areas, and where the
applicant or respondent is an adult or a child.
Subclause (2) amends section 209(4) of the Family Violence
Protection Act 2008 to clarify that the power of the Chief
Magistrate to issue practice directions, statements or notes
for the court under section 16A of the Magistrates' Court
Act 1989 includes, but is not limited to, the power to issue
practice directions, statements or notes for the making and
filing applications for family violence intervention orders
by electronic communication.
These amendments support the introduction of the amendments
made by clause 17 in relation to applications made by electronic
communication, including those applications made by a
declaration of truth.
Clause 33 inserts new section 210(2)(ca) of the Family Violence
Protection Act 2008 to enable the President of the Children's
Court, together with 2 or more magistrates, to make rules
with respect to processes and procedures for making and
filing applications for family violence intervention orders
in the Children's Court. The rules may include, but are not
limited to--
making and filing applications by electronic
communication; and
providing for different requirements, procedures or
processes regarding applications made during court
hours, after hours or in remote areas, and where the
applicant or respondent is an adult or a child.
30
Subclause (2) amends section 210(4) of the Family Violence
Protection Act 2008 to clarify that the power of the President
of the Children's Court to issue practice directions, statements
or notes for the court under section 592 of the Children, Youth
and Families Act 2005 includes, but is not limited to, the power
to issue practice directions, statements or notes for the making
and filing applications for family violence intervention orders
by electronic communication.
These amendments support the introduction of the amendments
made by clause 17 in relation to applications made by electronic
communication, including those made by declaration of truth.
Clause 34 inserts new Division 12 of Part 14 into the Family Violence
Protection Act 2008, which is a transitional and savings
provision. New section 232 provides that the amendments
made to section 209 and section 210 of the Family Violence
Protection Act 2008 do not affect the validity or operation of
any rules of court that were made under those sections prior to
the commencement of those amendments.
Part 4--Amendments to establish Specialist Family Violence
Court Division of the Magistrates' Court
Part 4 of the Bill responds to recommendation 60 of the Royal Commission
regarding extending the functions of the Family Violence Court Division to
other courts, by enabling--
the establishment and roll out of the Specialist Family Violence
Court Division, a new model that enhances the functions of the
Family Violence Court Division with a suite of improved
services and infrastructure; and
the abolition of the Family Violence Court Division when the
existing venues of the Family Violence Court Division become
venues of the Specialist Family Violence Court Division.
Division 1--Establishment of Specialist Family
Violence Court Division
Clause 35 amends the definition of proper venue in section 3(1) of the
Magistrates' Court Act 1989 in relation to the new Specialist
Family Violence Court Division by inserting new paragraph (ca)
into the definition of proper venue.
31
The new paragraph of the definition provides that a venue
of the Court where the Specialist Family Court Division sits
has jurisdiction to hear a matter if it is determined the court
venue is the most appropriate venue, having regard to certain
considerations, such as--the place of residence of the parties,
the safety of the parties and any other considerations that the
Court considers relevant.
Other considerations that the Court may take into account
in determining the most appropriate venue could include the
work and childcare arrangements of the parties, and the need to
manage case flow of the venue of the Court. New paragraph (ca)
enables the Court greater flexibility in determining which matters
can be heard at the Specialist Family Violence Court Division.
Clause 36 inserts new sections 4IA and 4IB into the Magistrates' Court
Act 1989.
New section 4IA establishes the Specialist Family Violence
Court Division in the Magistrates' Court and provides for the
powers of the Specialist Family Violence Court Division, how
the Division may be constituted, and how a magistrate may be
assigned to the Division.
The new section is broadly similar to existing section 4H of
the Magistrates' Court Act 1989, which establishes the Family
Violence Court Division. The new section differs from existing
section 4H by providing that in accordance with new subsections
4IA(7) and (8), the Specialist Family Violence Court Division
may sit at any venue of the Court specified by the Minister by
notice published in the Government Gazette after consulting
the Chief Magistrate, rather than further venues being prescribed
by regulation as currently provided in existing section 4H(5).
New section 4IB provides for the jurisdiction of the Specialist
Family Violence Court Division, which includes proceedings
that fall within the jurisdiction of the Magistrates' Court and
arise from or include allegations of family violence. The new
section is similar to existing section 4I of the Magistrates'
Court Act 1989, which provides for the jurisdiction of the
Family Violence Court Division. New section 4IB also allows
a proceeding to be transferred to the Specialist Family Violence
Court Division only if it is the most appropriate venue in
accordance with new paragraph (ca) of the definition of proper
venue as provided for by clause 35.
32
Clause 37 inserts references to the Specialist Family Violence Court
Division in certain sections of the Magistrates Court Act 1989
to reflect the establishment and jurisdiction of the new Specialist
Family Violence Court Division.
Clause 38 inserts reference to the Specialist Family Violence Court
Division in the note to section 11(1) of the Criminal Procedure
Act 2009 as a consequence of amendments made by clause 36.
The amendment means that the note applies to both the Family
Violence Court Division and the Specialist Family Violence
Court Division.
Clause 39 amends certain definitions in the Family Violence Protection
Act 2008 as a consequence of amendments made by clause 36.
Subclause (1) inserts a definition of the Specialist Family
Violence Court Division into section 4 of the Family Violence
Protection Act 2008, to mean a Specialist Family Violence
Court established under new section 41A(1) of the Magistrates'
Court Act 1989, as detailed in clause 36.
Subclause (2) amends section 126 of the Family Violence
Protection Act 2008 by inserting new paragraph (ab) into the
definition of relevant court to include the Specialist Family
Violence Court Division.
Subclause (3) amends section 145 of the Family Violence
Protection Act 2008 to insert reference to the Specialist Family
Violence Court Division in the definition of Magistrates' Court.
Clause 40 inserts new section 141A in the Personal Safety Intervention
Orders Act 2010 to allow the transfer of personal safety
intervention order proceedings to the Specialist Family Violence
Court Division. New section 141A(1) provides that if the
Specialist Family Violence Court Division makes a determination
under section 136(2)(b) of the Personal Safety Intervention
Orders Act 2010, the Court may transfer the proceedings to the
Magistrates' Court in accordance with new section 4IB(5) of the
Magistrates Court Act 1989, or continue to hear the matter.
New section 141A(2) also provides a definition of the Specialist
Family Violence Court Division in the Personal Safety
Intervention Orders Act 2010.
33
Division 2--Abolition of Family Violence Court Division
Clause 41 amends the definition of proper venue in section 3(1) of the
Magistrates' Court Act 1989 to remove references to the
Family Violence Court Division.
Clause 42 repeals section 4H(5)(a) of the Magistrates' Court Act 1989,
which provides for Ballarat as a venue where the Family
Violence Court Division may sit. It is intended that clause 42
will commence when Ballarat becomes a venue of the Specialist
Family Violence Court Division under clause 36. Ballarat will
continue to operate as a venue of the Family Violence Court
Division until that time.
Clause 43 repeals section 4H(5)(b) of the Magistrates' Court Act 1989,
which provides for Heidelberg as a venue where the Family
Violence Court Division may sit. It is intended that clause 43
will commence when Heidelberg becomes a venue of the
Specialist Family Violence Court Division under clause 36.
Heidelberg will continue to operate as a venue of the Family
Violence Court Division until that time.
Clause 44 amends the Magistrates' Court Act 1989 to abolish and remove
references to the Family Violence Court Division. The Family
Violence Court Division will continue sitting at Ballarat and
Heidelberg until each Court venue is able to support the new
Specialist Family Violence Court Division as established by
clause 36.
Subclause (1) repeals sections 4H and 4I of the Magistrates'
Court Act 1989 to abolish the Family Violence Court Division.
Subclauses (2), (3), (4) and (5) amend sections 4H, 4I, 4J, 4K,
4L and 16(1A) of the Magistrates' Court Act 1989 to remove
references to the Family Violence Court Division.
Clause 45 inserts a transitional provision into Schedule 8 to the
Magistrates' Court Act 1989 to provide that any reference in
any Act, regulation, subordinate instrument or other document to
the Family Violence Court Division after the Division has been
abolished will be taken to mean the Specialist Family Violence
Court Division, so far as it is consistent with the subject matter.
This ensures that any references to the Family Violence Court
34
Division, including references in regulations, rules, orders and
notices are, after the abolition of the Family Violence Court
Division, taken to be references to the Specialist Family Violence
Court Division.
Clause 46 amends the note to section 11(1) of the Criminal Procedure
Act 2009 to remove reference to the Family Violence Court
Division as a consequence of amendments made by clause 44.
Clause 47 amends the Family Violence Protection Act 2008 to remove
references to the Family Violence Court Division as a
consequence of amendments made by clause 44.
Clause 48 repeals section 141 of the Personal Safety Intervention Orders
Act 2010 as a consequence of amendments made by clause 44.
The current arrangements provided for in section 141 of the
Personal Safety Intervention Orders Act 2010 regarding
transferring personal safety intervention order proceedings to
a Family Violence Court Division will apply to the Specialist
Family Violence Court Division under new section 141A inserted
by clause 40.
Part 5--Amendments related to electronic communications
Part 5 of the Bill makes amendments to a number of Acts to facilitate
the issue and transmission of court and tribunal documents by electronic
communication.
The term electronic communication is defined in the Interpretation
of Legislation Act 1984 by reference to the Electronic Transactions
(Victoria) Act 2000. This definition incorporates any communication
of information in the form of data, text, images, or sound by means of
guided or unguided electromagnetic energy. The definition is intended
to be interpreted broadly so that it includes--
information that is communicated using a range of different
mechanisms (such as via telephone, fax or the internet); and
information that is recorded, stored or retained in an electronic
form, but that is not transmitted immediately after being
created.
35
Division 1--Magistrates' Court Act 1989
Clause 49 inserts sections 16(1)(ga) and 16(1A)(ba) into the Magistrates'
Court Act 1989 to allow the Chief Magistrate, together with 2 or
more Deputy Chief Magistrates, to make rules of court in relation
to electronic communication and electronic processes. Such rules
may include, but are not limited to, applications by electronic
means, electronic filing, electronic service of documents, the
transmission and issuing of orders, processes and other
documents by electronic communication, and the use of
electronic signatures and seals.
New section 16(1)(ga) relates to making rules of court with
respect to civil proceedings in the Magistrates' Court.
New section 16(1A)(ba) relates to making rules of court with
respect to criminal proceedings in the Magistrates' Court.
Clause 50 amends section 57 of the Magistrates' Court Act 1989 to
broaden the circumstances in which a warrant may be issued
electronically, in accordance with Division 3 of Part 4 the
Magistrates' Court Act 1989.
Subclause (1) inserts new section 57(1AA) into the Magistrates'
Court Act 1989 to clarify that a warrant may be issued in paper
or electronic form, as section 57 is silent as to the form of a
warrant (noting that section 57(9) provides that an execution
copy of a warrant must be in writing).
Subclause (2) substitutes section 57(1A) of the Magistrates'
Court Act 1989 in order to provide that a warrant may be issued
electronically by requiring the person who issues the warrant to
transmit the warrant, or the prescribed particulars of the warrant,
to the person to whom the warrant is issued, in accordance with
any regulations.
Currently, section 57(1A) only applies to warrants directed to
police officers, and requires the person who issues the warrant to
enter the prescribed particulars into the computer system used by
the Magistrates' Court. Clause 50 facilitates the electronic issue
and transmission of warrants by removing these restrictions in
order to--
36
enable all warrants, and not just those directed to
police officers, that are issued in accordance with the
Magistrates' Court Act 1989 (including warrants
issued under other enactments) to be issued and
transmitted electronically to the relevant recipient; and
eliminate the requirement for the prescribed particulars
to be entered into the computer system used by the
Court, as this requirement is not necessary for all types
of warrants.
These amendments apply to all warrants listed in section 57(1) of
the Magistrates' Court Act 1989.
Subclause (3) amends section 57(4) of the Magistrates' Court
Act 1989 to clarify that a judicial registrar, in addition to a
registrar or a magistrate, may issue all warrants, other than a
search warrant. In accordance with clause 54, this amendment
does not affect the validity of any warrant that is issued by a
judicial registrar in accordance with section 57 prior to the
commencement of the amendments.
Clause 51 amends section 58(1) of the Magistrates' Court Act 1989
to enable a warrant that is issued by a judicial registrar to be
recalled and cancelled by that judicial registrar, consistent
with the amendments made by clause 50.
Clause 52 amends section 59(1) of the Magistrates' Court Act 1989 to
enable a judicial registrar to issue a duplicate execution copy
of a warrant that was issued by a judicial registrar, registrar,
magistrate, or bail justice, if the judicial registrar is satisfied
by evidence on oath or by affidavit that the execution copy of
the warrant has been lost or destroyed before it was executed.
Consistent with the amendments made by clause 50, this
amendment ensures that judicial registrars have the same power
to issue duplicate execution copies of warrants as a registrar,
magistrate or bail justice has.
Subclause (b) amends section 59(4) of the Magistrates' Court
Act 1989 to enable a judicial registrar to issue a duplicate
execution copy of a warrant, if the judicial registrar is satisfied
by evidence on oath or by affidavit that the execution copy of
the warrant has been lost or destroyed, in relation to a person--
37
who is in a prison, a police gaol, or a youth justice
centre in accordance with the executed warrant; or
who has been released on parole from a prison, a police
gaol, or a youth justice centre but is still under sentence.
This amendment ensures that judicial registrars have the
same power to issue duplicate execution copies of warrants
as registrars and magistrates currently do in the above
circumstances.
Clause 53 inserts new section 136A into the Magistrates' Court Act 1989
to make it clear that the Magistrates' Court may issue or transmit
court documents by electronic communication.
New section 136A(1) provides a general power for the Court, a
magistrate, a judicial registrar, a court official or a bail justice
to issue or transmit any order, process or other document under
the Magistrates' Court Act 1989 or any other Act, statutory
rule, or other enactment or law by electronic communication.
New section 136A(2) is a deeming provision which provides that,
if any provision of an Act, a statutory rule or other enactment
or law in Victoria permits or requires any order, process or
document to be issued or transmitted by manual means (that is,
by hand rather than electronically), that requirement is taken to
be met if those documents are issued or transmitted using a form
of electronic communication. For example, if an Act requires the
Court to issue a document by using a handwritten signature or a
physical seal, that requirement would be met if the Court used an
electronic signature or electronic seal instead.
New section 136A(3) provides that new section 136A does not--
limit the issue or provision of documents in paper form;
affect or limit any practice, procedure or rules of court
that provide for electronic processes in the Magistrates'
Court;
affect or limit the power to make rules of court; or
limit any other power of the Court, a magistrate, a
judicial registrar, a court official or a bail justice.
38
Clause 54 inserts new clause 57 into Schedule 8 to the Magistrates' Court
Act 1989, which is a transitional and savings provision.
New clause 57(1) provides that the amendments made to
sections 57, 58 and 59 of the Magistrates' Court Act 1989
in relation to warrants do not affect the validity of any warrant
issued in accordance with section 57 as in force immediately
before commencement of the amendments, or the validity of
any action taken under such a warrant.
New clause 57(2) provides that the amendments made to
sections 16, 57, 58 and 59 of the Magistrates' Court Act 1989
do not affect the validity or operation of any rules of court that
were made under those sections, as in force immediately before
the commencement of those amendments.
Division 2--Children, Youth and Families Act 2005
Clause 55 substitutes section 528B(1) of the Children, Youth and
Families Act 2005 to broaden the circumstances in which a
warrant may be issued by electronic communication under
that Act.
Substituted section 528B(1) of the Children, Youth and
Families Act 2005 enables a warrant to be issued electronically
by requiring the person who issues the warrant to transmit the
warrant, or the prescribed particulars of the warrant, to the
person to whom the warrant is issued, in accordance with any
regulations.
Currently section 528B(1) only applies to warrants directed to
police officers, and requires the person who issues the warrant to
enter the prescribed particulars into the computer system used by
the Children's Court. Clause 55 facilitates the electronic issue
and transmission of warrants by removing these restrictions in
order to--
enable all warrants, and not just those directed to police
officers, to be issued and transmitted electronically to
the relevant recipient; and
eliminate the requirement for the prescribed particulars
to be entered into the computer system used by the
court, as this requirement is not necessary for all types
of warrants.
39
Clause 56 inserts new section 533A into the Children, Youth and Families
Act 2005 to make it clear that the Children's Court may issue or
transmit court documents by electronic communication.
New section 533A(1) provides a general power for the Court,
the President, a magistrate for the Court, a bail justice or a court
official to issue or transmit any order, process or other document
under the Children, Youth and Families Act 2005 or any other
Act, statutory rule, or other enactment or law by electronic
communication.
New section 533A(2) is a deeming provision which provides that,
if any provision of an Act, a statutory rule or other enactment or
law in Victoria permits or requires any order, process or other
document to be issued or transmitted by manual means (that is,
by hand rather than electronically), that requirement is taken to
be met if those documents are issued or transmitted using a form
of electronic communication. For example, if an Act requires the
Court to issue a document by using a handwritten signature or a
physical seal, that requirement would be met if the Court used an
electronic signature or electronic seal instead.
New section 533A(3) provides that new section 533A does not--
limit the issue or provision of documents in paper form;
affect or limit any practice, procedure or rules of court
that provide for electronic processes in the Children's
Court;
affect or limit the power to make rules of court; or
limit any other power of the Court, the President, a
magistrate for the Court, a bail justice or a court official.
Clause 57 inserts section 588(1AAB)(ba) into the Children, Youth and
Families Act 2005 to allow the President, together with
2 or more magistrates for the Children's Court, to make rules
of court in relation to electronic communication and electronic
processes. Such rules may include, but are not limited to,
applications by electronic means, electronic filing, electronic
service of documents, the transmission and issuing of orders,
processes and other documents by electronic communication,
and the use of electronic signatures and seals.
40
Clause 58 inserts new section 630(1) into the Children, Youth and
Families Act 2005, which is a transitional and savings provision.
This section provides that the amendment made to section 528B
of the Children, Youth and Families Act 2005 does not
affect the validity of any warrant issued in accordance with
section 528B, as in force immediately before the commencement
of the amendment, or any action taken under such a warrant.
Clause 58 also inserts new section 630(2) into the Children,
Youth and Families Act 2005, which is a transitional and
savings provision. This section provides that the amendment
made to section 588 of the Children, Youth and Families
Act 2005 does not affect the validity or operation of any
rules of court that were made under that section, as in force
immediately before the commencement of the amendment.
Division 3--County Court Act 1958
Clause 59 inserts new section 6A into the County Court Act 1958 to
make it clear that the County Court may issue or transmit court
documents by electronic communication.
New section 6A(1) provides a general power for the court, a
judge, an associate judge, a judicial registrar or a registrar to
issue or transmit any order, judgment or other document under
the County Court Act 1958 or any other Act, statutory rule,
or other enactment or law by electronic communication.
New section 6A(2) is a deeming provision which provides that,
if any provision of an Act, a statutory rule or other enactment
or law in Victoria permits or requires any order, judgment or
document to be issued or transmitted by manual means (that is,
by hand rather than electronically), that requirement is taken to
be met if those documents are issued or transmitted using a form
of electronic communication. For example, if an Act requires the
court to issue a document by using a handwritten signature or a
physical seal, that requirement would be met if the court used an
electronic signature or electronic seal instead.
New section 6A(3) provides that new section 6A does not--
limit the issue or provision of documents in paper form;
affect or limit any practice, procedure or Rules that
provide for electronic processes in the County Court;
41
affect or limit the power to make Rules; or
limit any other power of the court, a judge, an associate
judge, a judicial registrar or a registrar.
Clause 60 substitutes "by order under his hand or by telegram" with
"by signed order or by other electronic communication" in
section 7(4) of the County Court Act 1958. This amendment
modernises the way in which a court registrar may adjourn the
court, in circumstances where a judge or associate judge does
not arrive at the courthouse before 1 p.m.
Clause 61 inserts new section 78(1)(hh) into the County Court Act 1958
to enable a majority of the judges (excluding reserve judges,
associate judges, and reserve associate judges) to make rules of
court in relation to electronic communication and electronic
processes. Such rules may include, but are not limited to,
applications by electronic means, electronic filing, electronic
service of documents, the transmission and issuing of orders,
judgments and other documents by electronic communication,
and the use of electronic signatures and seals.
Clause 62 inserts new section 103 into the County Court Act 1958, which
is a transitional and savings provision. This section provides
that the amendment made to section 78 of the County Court
Act 1958 does not affect the validity or operation of any Rules
that were made under that section, as in force immediately
before the commencement of the amendment.
Division 4--Supreme Court Act 1986
Clause 63 inserts a new section 24B into the Supreme Court Act 1986 to
make it clear that the Supreme Court may issue or transmit court
documents by electronic communication.
New section 24B(1) provides a general power for the Court, a
Judge of the Court, an Associate Judge, a judicial registrar or a
court official to issue or transmit any order, judgment, process
or other document under the Supreme Court Act 1986 or any
other Act, statutory rule, or other enactment or law by electronic
communication.
42
New section 24B(2) is a deeming provision which provides that,
if any provision of an Act, a statutory rule or other enactment or
law in Victoria permits or requires any order, judgment, process
or document to be issued or transmitted by manual means (that is,
by hand rather than electronically), that requirement is taken to
be met if those documents are issued or transmitted using a form
of electronic communication. For example, if an Act requires the
Court to issue a document by using a handwritten signature or a
physical seal, that requirement would be met if the Court used an
electronic signature or electronic seal instead.
New section 24B(3) provides that new section 24B does not--
limit the issue or provision of documents in paper form;
affect or limit any practice, procedure or Rules of Court
that provide for electronic processes in the Supreme
Court;
affect or limit the power to make Rules of Court; or
limit any other power of the Court, a Judge of the Court,
an Associate Judge, a judicial registrar or a court
official.
Clause 64 inserts new section 25(1)(ai) into the Supreme Court Act 1986
to enable the Judges of the Court (excluding reserve judges)
to make Rules of Court for or with respect to electronic
communication and electronic processes. Such Rules may
include, but are not limited to, applications by electronic
means, electronic filing, electronic service of documents, the
transmission and issuing of orders, judgments, processes and
other documents by electronic communication, and the use of
electronic signatures and seals.
Clause 65 inserts new section 156 into the Supreme Court Act 1986,
which is a transitional and savings provision. This section
provides that the amendment made to section 25 of the Supreme
Court Act 1986 does not affect the validity or operation of any
Rules of Court that were made under that section, as in force
immediately before the commencement of the amendment.
43
Division 5--Victorian Civil and Administrative Tribunal Act 1998
Clause 66 inserts a new section 132A into the Victorian Civil and
Administrative Tribunal Act 1998 to make it clear that the
Tribunal may issue or transmit documents by electronic
communication.
New section 132A(1) provides a general power for the Tribunal,
a member of the Tribunal, the principal registrar or a registrar
to issue or transmit any order, determination or other document
under the Victorian Civil and Administrative Tribunal
Act 1998 or any other Act, statutory rule, or other enactment
or law by electronic communication.
New section 132A(2) is a deeming provision which provides that,
if any provision of an Act, a statutory rule or other enactment or
law in Victoria permits or requires any order, determination or
other document to be issued or transmitted by manual means
(that is, by hand rather than electronically), that requirement is
taken to be met if those documents are issued or transmitted
using a form of electronic communication. For example, if
an Act requires the Tribunal to issue a document by using a
handwritten signature or a physical seal, that requirement would
be met if the Tribunal used an electronic signature or electronic
seal instead.
New section 132A(3) provides that new section 132A does not--
limit the issue or provision of documents in paper form;
affect or limit any practice, procedure or rules that
provide for electronic processes in the Tribunal;
affect or limit the power to make rules; or
limit any other power of the Tribunal, a member of the
Tribunal, the principal registrar or a registrar.
Clause 67 amends Schedule 2 to the Victorian Civil and Administrative
Tribunal Act 1998 to enable the Rules Committee to make
rules for or with respect to electronic communication and
electronic processes. Such rules may include, but are not
limited to, applications by electronic means and electronic
filing of documents, the transmission and issuing of
orders, determinations and other documents by electronic
communication, and the use of electronic signatures and seals.
44
Clause 68 inserts new section 172 into the Victorian Civil and
Administrative Tribunal Act 1998, which is a transitional
and savings provision. This section provides that the amendment
made to Schedule 2 to the Victorian Civil and Administrative
Tribunal Act 1998 does not affect the validity or operation
of any rules that were made under section 157 and that Schedule,
as in force immediately before the commencement of the
amendment.
Division 6--Coroners Act 2008
Clause 69 inserts a new section 102AA into the Coroners Act 2008 to
make it clear that the Coroners Court may issue or transmit
court documents by electronic communication.
New section 102AA(1) provides a general power for the
Coroners Court, a coroner, a judicial registrar or a registrar to
issue or transmit any order, determination or other document
under the Coroners Act 2008 or any other Act, statutory rule,
or other enactment or law by electronic communication.
New section 102AA(2) is a deeming provision which provides
that, if any provision of an Act, a statutory rule or other
enactment or law in Victoria permits or requires any order,
determination or other document to be issued or transmitted
by manual means (that is, by hand rather than electronically),
that requirement is taken to be met if those documents are
issued or transmitted using a form of electronic communication.
For example, if an Act requires the Coroners Court to issue a
document by using a handwritten signature or a physical seal,
that requirement would be met if the Coroners Court used an
electronic signature or electronic seal instead.
New section 102AA(3) provides that new section 102AA does
not--
limit the issue or provision of documents in paper form;
affect or limit any practice, procedure or rules that
provide for electronic processes in the Coroners Court;
affect or limit the power to make rules; or
limit any other power of the Coroners Court, a coroner,
a judicial registrar or a registrar.
45
Clause 70 inserts new section 105(1)(baa) of the Coroners Act 2008 to
enable the State Coroner, together with 2 or more coroners,
to jointly make rules for or with respect to electronic
communication and electronic processes in the Coroners
Court. Such rules may include, but are not limited to,
applications by electronic means, electronic filing, electronic
service of documents, the transmission and issuing of
orders, determinations and other documents by electronic
communication, and the use of electronic signatures and seals.
Clause 71 inserts new section 121 into the Coroners Act 2008, which is a
transitional and savings provision. This section provides that the
amendment made to 105 of the Coroners Act 2008 does not
affect the validity or operation of any rules that were made under
that section, as in force immediately before the commencement
of the amendment.
Division 7--Personal Safety Intervention Orders Act 2010
Clause 72 inserts new section 13(3) of the Personal Safety Intervention
Orders Act 2010 to clarify that an application for a personal
safety intervention order may be made by a police officer by
telephone, fax or other forms of electronic communication,
unless otherwise provided in the rules.
Section 13 is silent as to the form of an application for a
personal safety intervention order. As clause 73 repeals
section 14 (which allows police to make an application that
seeks an interim order by electronic communication after hours
or from remote areas), new section 13(3) makes it clear that
police can seek an interim personal safety intervention order
by electronic communication.
Clause 73 repeals section 14 of the Personal Safety Intervention Orders
Act 2010, which allows police to make an application that
seeks an interim personal safety intervention order by electronic
communication either after normal court hours, or where it is
impracticable to make an application in person due to the
distance from the nearest venue of the court.
The amendment enables police to seek an interim personal safety
intervention order by electronic communication at any time and
from any location, in order to streamline and expedite the process
for making interim orders, both for the court and for police.
46
Clause 74 amends section 38 of the Personal Safety Intervention Orders
Act 2010 regarding the evidentiary requirements for making
interim personal safety intervention orders for applications that
are made by electronic communication.
Subclause (1) amends section 38(1)(b) of the Personal Safety
Intervention Orders Act 2010 to omit the reference to
applications made under section 14, as a result of the repeal of
that section.
Subclause (2) inserts new section 38(1A) of the Personal Safety
Intervention Orders Act 2010 which allows the court to waive
the requirement under section 38(1)(a) that an application for an
interim personal safety intervention order be supported by oral
evidence or an affidavit if the applicant is a police officer and the
application is made by electronic communication--
provided that the court has considered whether it is
practicable to obtain oral evidence or an affidavit
before making the interim order; or
if the application is made after normal court hours
(that is, before 9 a.m. or after 5 p.m. on a weekday
or on a Saturday, Sunday or a public holiday) and
was certified in accordance with section 13(2).
The purpose of the amendment is to ensure that the evidentiary
requirements for making an interim personal safety intervention
order can continue to be waived--
in the same circumstances as previously set out at
section 14 (that is, if an application is made from a
remote area or outside normal court hours), as a
result of the repeal of that section; and
in relation to applications that are made by police by
electronic communication at any other time, due to
the amendment to section 13.
Clause 75 amends section 41 of the Personal Safety Intervention Orders
Act 2010 to clarify that section 41 only applies to applications
made by electronic communication where the applicant is a
police officer.
47
Clause 76 inserts new section 183(2)(ba) into the Personal Safety
Intervention Orders Act 2010 to enable the Chief Magistrate,
together with 2 or more Deputy Chief Magistrates, to jointly
make rules of court with respect to processes and procedures for
making and filing applications for personal safety intervention
orders in the Magistrates' Court. The rules may include, but are
not limited to--
making and filing applications by electronic
communication; and
providing for different requirements, procedures or
processes regarding applications made during court
hours, after hours or in remote areas, and where the
applicant or respondent is an adult or a child.
Subclause (2) amends section 183(4) of the Personal Safety
Intervention Orders Act 2010 to clarify that the power of
the Chief Magistrate to issue practice directions, statements
or notes for the court under section 16A of the Magistrates
Court Act 1989 includes, but is not limited to, the power to
issue practice directions, statements or notes for the making
and filing applications for personal safety intervention orders
by electronic communication.
These amendments support the introduction of the amendments
made by clause 72 in relation to applications made by electronic
communication.
Clause 77 inserts new section 184(2)(ba) of the Personal Safety
Intervention Orders Act 2010 to enable the President of the
Children's Court, together with 2 or more magistrates for that
court, to jointly make rules with respect to processes and
procedures for making and filing applications for personal
safety intervention orders in the Magistrates' Court. The rules
may include, but are not limited to--
making and filing applications by electronic
communication; and
providing for different requirements, procedures or
processes regarding applications made during court
hours, after hours or in remote areas, and where the
applicant or respondent is an adult or a child.
48
Subclause (2) amends section 184(4) of the Personal Safety
Intervention Orders Act 2010 to clarify that the power of the
President of the Children's Court to issue practice directions,
statements or notes for the court under section 592 of the
Children, Youth and Families Act 2005 includes, but is not
limited to, the power to issue practice directions, statements or
notes for the making and filing applications for personal safety
intervention orders by electronic communication.
These amendments support the introduction of the amendments
made by clause 72 in relation to applications made by electronic
communication.
Clause 78 inserts new Division 4 of Part 13 into the Personal Safety
Intervention Orders Act 2010, which is a transitional
and savings provision. New section 198 provides that the
amendments made to section 183 and section 184 of the
Personal Safety Intervention Orders Act 2010 do not affect
the validity or operation of any rules of court that were made
under those sections prior to the commencement of those
amendments.
Part 6--Consequential amendments to other Acts--
electronic communication and other matters
Part 6 of the Bill makes consequential amendments to various Acts to
facilitate the issue and transmission of court and tribunal documents by
electronic communication, by--
clarifying that certain documents can be issued by electronic
communication; and
removing any references in Acts that might limit the ability of
the courts and the Victorian Civil and Administrative Tribunal
to issue documents by electronic communication.
Division 1--Confiscation Act 1997
Clause 79 amends section 31E of the Confiscation Act 1997 in order to
facilitate the issue and transmission of an application for a
freezing order by electronic communication.
49
Subclause (1) substitutes "etc." with "or other electronic
communication" in the heading to section 31E. This amendment
clarifies that an authorised police officer may apply for a freezing
order by electronic communication, in addition to by telephone or
by facsimile.
Subclause (2) amends section 31E to--
insert "electronic" before "communication" in
subsection (1), in order to clarify that an application
may be made by electronic communication; and
insert "or other electronic communication" after
"machine" in subsection (2), in order to enable an
affidavit prepared in relation to the application to be
transmitted by electronic communication, in addition
to by facsimile machine, in circumstances where
facilities for transmission by electronic communication
are available.
Clause 80 inserts "or other electronic communication" after "facsimile
machine" in section 31F(5)(b) of the Confiscation Act 1997,
in order to enable the Magistrates' Court to transmit a copy of
a freezing order to the applicant by electronic communication,
in addition to by facsimile machine, where facilities for
transmission by electronic communication are available.
Paragraph (b) makes a consequential amendment to
section 31F(6) to provide that, if a copy of the freezing
order has not been transmitted by fax or other electronic
communication, the Court must make a copy of the freezing
order available to the applicant as soon as practicable.
Clause 81 omits references to "or by facsimile" in section 31G(1) and (2)
of the Confiscation Act 1997. Section 31G(1) and (2) refer
to the Magistrates' Court providing, or not providing, an
applicant with a copy of a freezing order in writing or by
facsimile. The Interpretation of Legislation Act 1984 defines
writing to include all modes of representing or reproducing
words, figures or symbols in a visible form, and does not
distinguish between representations made in paper or electronic
form. Thus, the references to "in writing" at section 31G(1)
and (2) are broad enough to include the provision of a freezing
order by facsimile or by electronic communication, so the
reference to "or by facsimile" is not required.
50
Paragraph (b) amends section 31G(4) of the Confiscation
Act 1997 to enable a notice of a freezing order to be given
by electronic communication, in addition to by facsimile.
Clause 82 amends section 81 of the Confiscation Act 1997 to facilitate the
issue and transmission of documents relating to an application
for a search warrant under section 79 or a seizure warrant under
section 79A of that Act by electronic communication.
Paragraph (a) inserts "or other electronic communication" after
"facsimile machine" in section 81(3) to enable a police officer
to transmit a copy of an affidavit supporting an application for
a search warrant or seizure warrant to the magistrate or judge
who is to hear the application, by electronic communication,
in addition to by facsimile machine, where facilities for
transmission by electronic communication are available.
Paragraph (b) inserts "or other electronic communication" after
"facsimile machine" in section 81(5)(b) to enable a magistrate
or judge to transmit a copy of the search or seizure warrant to
the applicant by electronic communication, in addition to by
facsimile machine, where facilities for transmission by electronic
communication are available.
Paragraph (c) inserts "or other electronic communication"
after "facsimile machine" in section 81(6), so that the
requirements imposed on applicants for search or seizure
warrants by subsection (6)(a) and (b) apply where the warrant
has not been transmitted by facsimile machine or by electronic
communication.
Clause 83 inserts "or other electronic communication" after "facsimile"
in section 118I of the Confiscation Act 1997 to enable an
information notice to be given to a financial institution in
accordance with section 137 by electronic communication,
in addition to by facsimile.
Clause 84 inserts "or other electronic communication" after "facsimile" in
section 139A(1)(b)(ii) of the Confiscation Act 1997 to enable
the Chief Commissioner of Police to submit a report to the
Minister in relation to the number of applications for freezing
orders that were made by police by facsimile or by electronic
communication, as a result of the amendment to section 31E.
51
Division 2--Corrections Act 1986
Clause 85 inserts "or other electronic communication" after "facsimile
machine" in section 79I of the Corrections Act 1986 to enable
a warrant issued under Part 8 to be executed by the use of a copy
of the original warrant, including a copy that is transmitted by
electronic communication, in addition to by facsimile machine.
Division 3--Crimes Act 1958
Clause 86 amends section 464V of the Crimes Act 1958 to facilitate the
making of applications for an interim compulsory procedure
order by audio link or audio visual link.
Subclause (1) substitutes "telephone" with "audio link or
audio visual link" in section 464V(4) to allow a police officer
to apply for an interim compulsory procedure order by audio
link or audio visual link. Currently, a police officer may only
apply for an interim compulsory procedure order by telephone.
This amendment expands the facilities that police can use to
apply for an interim compulsory procedure order, so that it
includes other audio or audio visual facilities, in addition to
telephone.
Subclause (2) makes a consequential amendment to
section 464V(5)(c) to substitute "telephone" with "audio link
or audio visual link" as a result of the amendment made by
subclause (1), regarding the manner by which police may
apply for an interim compulsory procedure order.
Subclause (3) substitutes "telephone" with "audio link or
audio visual link" in section 464V(6)(c), consistent with the
amendment made by subclause (1), to provide that the court
must not conduct a further hearing by audio link or audio
visual link if the court makes an interim order.
Clause 87 makes consequential amendments to section 464W of the Crimes
Act 1958, as a result of the amendments made by clause 86(1), to
facilitate the making of applications for an interim compulsory
procedure order by audio link or audio visual link. Clause 87--
substitutes "telephone" with "audio link or audio visual
link" in the heading to section 464W and subsections
(1), (5), (8) and (10) to clarify that an application for an
interim order may be made by audio link or audio visual
link;
52
inserts "or other electronic communication" after
"machine" in subsections (3), (6), (8)(a) and (8)(b)
to enable the court and the applicant to transmit
documents relating to an application for an
interim compulsory procedure order by electronic
communication, in addition to by facsimile machine;
and
omit "by telephone" in subsection (3), as this reference
is no longer required as a result of the amendment made
by clause 86(1).
Subclause (8) inserts new section 464W(11) into the Crimes
Act 1958, which contains definitions for audio link and audio
visual link, for the purposes of sections 464V and 464W.
These definitions are consistent with those used in Part IIA
of the Evidence (Miscellaneous Provisions) Act 1958.
Subclause (8) also inserts new section 464W(12) into the
Crimes Act 1958, which provides that nothing in section 464V
or section 464W engages the provisions of Part IIA of the
Evidence (Miscellaneous Provisions) Act 1958, regarding the
appearance before a court using audio link or audio visual link.
Division 4--Crown Proceedings Act 1958
Clause 88 omits "under his hand" from section 4 of the Crown
Proceedings Act 1958 to clarify that the judge or magistrate
who has imposed a fine, may certify that the fine was imposed
and provide relevant details of the fine in writing in the form
contained in the Second Schedule to that Act.
The Interpretation of Legislation Act 1984 defines writing to
include all modes of representing or reproducing words, figures
or symbols in a visible form, and does not distinguish between
representations made in paper or electronic form. The reference
to "under his hand" is removed in order to avoid any doubt that
the certification could be done by electronic communication,
using an electronic signature, and not just in paper form, using a
handwritten signature.
53
Clause 89 substitutes the reference to "Given under my hand this day of
19" with a requirement to date and sign the form contained in
the Second Schedule to the Crown Proceedings Act 1958, to
enable the form to be signed and dated by hand or by electronic
communication, using an electronic signature.
Division 5--Drugs, Poisons and Controlled Substances Act 1981
Clause 90 omits "under his hand" from section 81(1) of the Drugs, Poisons
and Controlled Substances Act 1981 in order to avoid any
doubt that a magistrate may issue a warrant under this section by
electronic communication, using an electronic signature, and not
just in paper form, using a handwritten signature.
Clause 91 substitutes "Given under my hand" with "Signed" in Schedule
Ten to the Drugs, Poisons and Controlled Substances Act 1981
in order to enable a warrant to be signed and dated by hand or by
electronic communication, using an electronic signature.
Division 6--Gambling Regulation Act 2003
Clause 92 substitutes the reference to "Given under my hand at on" with
"Dated at on--" in Form 1 of Schedule 4 to the Gambling
Regulation Act 2003. The reference to "under his hand" is
removed in order to avoid any doubt that a magistrate may
issue a special warrant by electronic communication, using
an electronic signature, and not just in paper form, using a
handwritten signature.
Division 7--Land Act 1958
Clause 93 makes consequential amendments to section 369(1) of the Land
Act 1958.
Paragraph (a) omits "under his hand" in section 369(1) of the
Land Act 1958 in order to avoid any doubt that the Registrar
may give written grounds for refusal by hand or by electronic
communication.
Paragraph (b) substitutes "under the hand of a judge" with "by a
judge" in section 369(1) of the Land Act 1958 in order to avoid
any doubt that a judge of the Court may issue a summons by
hand or by electronic communication.
54
Division 8--Major Crime (Investigated Powers) Act 2004
Clause 94 substitutes ", e-mail or any other means of communication"
with "or other electronic communication" in section 6(1) of the
Major Crimes (Investigative Powers) Act 2004 to ensure the
consistent use of terminology when referring to electronic
communication. This amendment enables the definition of
electronic communication in the Interpretation of Legislation
Act 1984 to apply to this section.
Subclause (2) inserts "or other electronic communication"
after "fax" in section 6(2) of the Major Crimes (Investigative
Powers) Act 2004 to enable a copy of an affidavit supporting
the application for a coercive powers order to be transmitted by
electronic communication, in addition to by fax, where facilities
for transmission by electronic communication are available.
Division 9--Petroleum Products Subsidy Act 1965
Clause 95 substitutes "under the hand of" with "signed by" in section 15(5)
of the Petroleum Products Subsidy Act 1965 to avoid any
doubt that the appropriate officer of the court may issue a
certificate by hand or by electronic communication, using a
handwritten or electronic signature.
Division 10--National Domestic Violence Order Scheme 2016
Clause 96 inserts ", 60G(1)" after "57(1)" in section 16(1)(b)(i) of the
National Domestic Violence Order Scheme Act 2016 to update
the meaning of properly notified in that section. This is a
consequential amendment which relates to the amendments in
clause 22 of this Bill to empower the courts to make interim
family violence intervention orders, on their own motion, in
criminal proceedings.
Division 11--Sex Work Act 1994
Clause 97 inserts "or other electronic communication" after "machine" in
section 64(2)(b) of the Sex Work Act 1994 to enable the Chief
Commissioner of Police to transmit a copy of the writing by
electronic communication, in addition to by facsimile machine, to
the principal registrar of the Magistrates' Court and to the office
of the Business Licensing Authority.
55
Clause 98 inserts "or other electronic communication" after "machine"
in section 78B(2)(b) of the Sex Work Act 1994 to enable the
Chief Commissioner of Police to transmit a copy of the writing
by electronic communication, in addition to by facsimile
machine, to the principal registrar of the Magistrates' Court and
to the office of the Business Licensing Authority.
Division 12--Surveillance Devices Act 1999
Clause 99 substitutes ", e-mail or any other means of communication"
with "or other electronic communication" in section 16(1)
of the Surveillance Devices Act 1999 to ensure the
consistent use of terminology when referring to electronic
communication. This amendment enables the definition of
electronic communication in the Interpretation of Legislation
Act 1984 to apply to this section.
Subclause (2) inserts "or other electronic communication" after
"fax" in section 16(2) of the Surveillance Devices Act 1999
to enable an affidavit in support of an application for a
surveillance device warrant to be transmitted to the relevant
judge or magistrate by electronic communication, in addition
to by fax, where facilities for transmission by electronic
communication are available.
Clause 100 inserts new section 17(3) into the Surveillance Devices Act 1999
to clarify that a surveillance device warrant may be issued in
paper or electronic form, as Subdivision 2 of Division 1 of Part 4
of the Surveillance Devices Act 1999 is currently silent as to the
form of a surveillance device warrant.
Clause 101 substitutes section 18(3) of the Surveillance Devices Act 1999 to
clarify that the person issuing a surveillance device warrant must
sign the warrant either by hand or with an electronic signature, as
section 18 is currently silent as to the form of the signature.
Clause 102 substitutes ", e-mail or any other means of communication"
with "or other electronic communication" in section 20D(1) of
the Surveillance Devices Act 1999 to ensure the consistent
use of terminology when referring to electronic communication.
This amendment enables the definition of electronic
communication in the Interpretation of Legislation Act 1984
to apply to this section.
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Subclause (2) inserts "or other electronic communication" after
"fax" in section 20D(2) to enable an affidavit in support of an
application for a retrieval warrant to be transmitted to the
relevant judge or magistrate by electronic communication, in
addition to by fax, where facilities for transmission by electronic
communication are available.
Clause 103 inserts new section 20E(3) into the Surveillance Devices
Act 1999, to clarify that a retrieval warrant may be issued
in paper or electronic form, as Subdivision 3 of Division 1
of Part 4 of the Surveillance Devices Act 1999 is currently
silent as to the form of a retrieval warrant.
Clause 104 substitutes section 20F(2) of the Surveillance Devices Act 1999
to clarify that the person issuing a retrieval warrant must sign
the warrant either by hand or with an electronic signature, as
section 20F is currently silent as to the form of the signature.
Division 13--Terrorism (Community Protection) Act 2003
Clause 105 inserts "or other electronic communication" after "machine"
in section 10(3) and section 10(5)(b) of the Terrorism
(Community Protection) Act 2003 in order to enable the
applicant or the Supreme Court to transmit documents relating
to the application for warrant under this section by electronic
communication, in addition to by facsimile machine, where
facilities for transmission by electronic communication are
available.
Paragraph (c) makes a consequential amendment to section 10(6)
of the Terrorism (Community Protection) Act 2003 to insert
"or other electronic communication" after "machine" as a result
of the amendment made to section 10(5)(b), regarding the
manner by which the Supreme Court may transmit a copy of
the warrant to the applicant.
Division 14--Unlawful Assemblies and Processions Act 1958
Clause 106 substitutes "under the magistrate's hand" with "signed by the
magistrate" in section 13 of the Unlawful Assemblies and
Processions Act 1958 to enable the magistrate to nominate
and appoint a special constable by precept in writing.
57
The Interpretation of Legislation Act 1984 defines writing
to include all modes of representing or reproducing words,
figures or symbols in a visible form, and does not distinguish
between representations made in paper or electronic form.
The reference to "under the magistrate's hand" is removed in
order to avoid any doubt that the precept could be made by
electronic communication, using an electronic signature, and
not just in paper form, using a handwritten signature.
Division 15--Statute law revision
Clause 107 contains statute law amendments to the Infringements Act 2006.
These amendments relate to family violence scheme applications
under the Fines Reform Act 2014, which assist victims of family
violence who incur infringement fines, and were consequential
amendments to the Infringements Act 2006 cross-referring to
that scheme in relation to internal reviews of infringement notices
under section 25 of the Infringements Act 2006.
The Fines Reform Amendment Act 2017 amended both the
Fines Reform Act 2014 and the Infringements Act 2006.
Due to the complex commencement of the Fines Reform
Act 2014 in 2017 and the commencement of the Fines Reform
Amendment Act 2017, the amendment of section 25 of the
Infringements Act 2006 which picked up cross-references
to family violence scheme applications did not come into
operation as intended. The statute law amendments re-enact
these provisions to restore the intended effect.
Part 7--Amendments in relation to interim family violence
and personal safety intervention orders
Part 7 of the Bill makes amendments to abolish appeals against interim
intervention orders under the Family Violence Protection Act 2008 and the
Personal Safety Intervention Orders Act 2010 and to provide additional
safeguards for the respondent in relation to the process to vary or revoke an
interim order.
Division 1--Family Violence Protection Act 2008
Clause 108 inserts new section 53(4) into the Family Violence Protection
Act 2008 to provide that the court may make an interim order
at any time after the making of an application for a family
violence intervention order and before the final decision about
58
the application is made, whether or not the court has previously
made or refused to make an interim order. This clarifies that the
court may make an interim order where an applicant did not seek
an interim order at the time of making their application, or an
interim order was refused at that time. This may be particularly
relevant where there has been an escalation in violence.
Clause 109 amends section 109 of the Family Violence Protection Act 2008
to provide a new requirement where a respondent seeks leave to
vary or revoke an interim family violence intervention order.
In addition to the existing 2 matters in section 109(2), the court
must also be satisfied that it is in the interests of justice that the
application be determined immediately, rather than waiting for
the final order hearing. This new requirement will act as a filter
to manage these applications so that they do not undermine the
final order hearing and are not used as an alternative means to
seek review of an interim order decision where there is no appeal
right. The respondent will still be able to seek to vary or revoke
the interim family violence intervention order pending the final
order hearing if, for example, the respondent is no longer able
to reasonably comply with the conditions of the order.
New sections 109(2A) to (2C) are new provisions that may
apply where an interim order was made and a respondent was
not present. In such cases, new section 109(2A)(a) allows the
court to grant leave to vary or revoke the interim order where it
is satisfied that it is in the interests of justice to do so, having
regard to the reasons the respondent was not present when the
order was made. In some cases, the respondent may not have
been served with the application but this, of itself, may not be
sufficient to establish that it is in the interests of justice to grant
leave. The new leave test will also require the court to consider
the basis for the application and any other relevant
considerations.
If the court grants leave to vary or revoke the interim order under
the new leave test, new section 109(2A)(b) provides that it may
set aside the order if it is satisfied that there are exceptional
circumstances that justify doing so. Setting aside an interim
order will have the effect of removing any record of the order
having been made. This new power is reserved for exceptional
circumstances that may ordinarily have been addressed on
appeal--for example, where the court is satisfied that the victim
has been misidentified as the perpetrator of violence. In such
59
situations, setting aside the order will ensure that the interim
order does not follow the victim through the police or court
system and adversely impact on other matters, such as family
law proceedings.
The new leave test will only apply if the respondent seeks
leave within 21 days after the day on which they are served
with a copy of the interim order. The new leave test should
be utilised to address any issues that arise as a result of the
respondent not being present when the interim order was made--
it is not intended to replace the ordinary leave requirement,
which requires the respondent to demonstrate a change in
circumstances. The shorter time limit for seeking leave under
the new test is intended to prevent a respondent from bypassing
the ordinary leave requirements.
However, in exceptional circumstances, the court may grant
an extension of time for seeking leave under the new test.
This limited power will provide flexibility in cases where there
is an exceptional reason for not complying with the time limit.
This may be particularly relevant where the respondent is
misidentified as the perpetrator of violence and had difficulty
accessing appropriate legal advice.
Clause 110 amends section 114(2) of the Family Violence Protection
Act 2008 to abolish the right of parties to appeal against
an interim order or a refusal to make an interim order.
Currently, these appeals are by way of rehearing, which
in practice is a de novo hearing. Clause 22 inserts new
Division 2A in Part 4 of the Family Violence Protection
Act 2008 to enable the courts to make interim orders on their
own motion in a bail proceeding or criminal proceeding. If the
appeal right continues to be available, it would entitle a party
to a de novo appeal of a decision of a higher court to make an
own motion interim order. This would be an unusual appellate
process in cases involving decisions of the County Court or
Supreme Court. Allowing appeals against interim orders,
whether by the Court's own motion or attaching to an application
for a family violence intervention order, may also undermine the
urgent, protective and temporary nature of interim orders and
delay final order proceedings. This restriction will limit the
jurisdiction of the Supreme Court and alter or vary section 85
of the Constitution Act 1975. This clause does not change the
60
right to judicial review or the appeal rights that exist for final
orders.
Clause 111 inserts new section 208(2) into the Family Violence Protection
Act 2008 and provides that it is the intention of section 114
to alter or vary section 85 of the Constitution Act 1975.
This satisfies the requirements of section 85 of the Constitution
Act 1975 in respect of the changes effected by clause 110.
Division 2--Personal Safety Intervention Orders Act 2010
Clause 112 inserts new section 35(6) into the Personal Safety Intervention
Orders Act 2010 to provide that the court may make an interim
order at any time after the making of an application for a personal
safety intervention order and before the final decision about the
application is made, whether or not the court has previously
made or refused to make an interim order. This clarifies that
the court may make an interim order where an applicant did not
seek an interim order at the time of making their application, or
an interim order was refused at that time.
Clause 113 amends section 86 of the Personal Safety Intervention Orders
Act 2010 to provide a new requirement where a respondent seeks
leave to vary or revoke an interim personal safety intervention
order. In addition to the existing 2 matters in section 86(2), the
court must also be satisfied that it is in the interests of justice that
the application be determined immediately, rather than waiting
for the final order hearing. This new requirement will act as a
filter to manage these applications so that they do not undermine
the final order hearing and are not used as an alternative means
to seek review of an interim order decision where there is no
appeal right. The respondent will still be able to seek to vary or
revoke the interim personal safety intervention order pending
the final order hearing if, for example, they are no longer able
to reasonably comply with the conditions of the order.
New sections 86(3) to (5) are new provisions that may apply
where an interim order was made and a respondent was not
present. In such cases, new section 86(3)(a) allows the court
to grant leave to vary or revoke the interim order where it is
satisfied that it is in the interests of justice to do so, having
regard to the reasons the respondent was not present when the
order was made. In some cases, the respondent may not have
been served with the application but this, of itself, may not be
61
sufficient to establish that it is in the interests of justice to
grant leave. The new leave test will also require the court to
consider the basis for the application and any other relevant
considerations.
If the court grants leave to vary or revoke the interim order
under the new leave test, new section 86(3)(b) provides that it
may set aside the order if it is satisfied that there are exceptional
circumstances that justify doing so. Setting aside an interim
order will have the effect of removing any record of the order
having been made. This new power is reserved for exceptional
circumstances that may ordinarily have been addressed on
appeal--for example, where the court is satisfied that the victim
has been misidentified as the perpetrator of violence. In such
situations, setting aside the order will ensure that the interim
order does not follow the victim through the police or court
system and adversely impact on other matters, such as family
law proceedings.
The new leave test will only apply if the respondent seeks
leave within 21 days after the day on which they are served
with a copy of the interim order. The new leave test should
be utilised to address any issues that arise as a result of the
respondent not being present when the interim order was
made--it is not intended to replace the ordinary leave
requirement, which requires the respondent to demonstrate a
change in circumstances. The shorter time limit for seeking
leave under the new test is intended to prevent a respondent
from bypassing the ordinary leave requirements.
However, in exceptional circumstances, the court may grant
an extension of time for seeking leave under the new test.
This limited power will provide flexibility in cases where there
is an exceptional reason for not complying with the time limit.
Clause 114 substitutes section 91(2) of the Personal Safety Intervention
Orders Act 2010 to abolish the right of parties to appeal against
an interim personal safety intervention order or a refusal to make
an interim personal safety intervention order, consistent with
appeals against interim family violence intervention orders.
Currently, these appeals are by way of rehearing, which in
practice is conducted as a de novo hearing. This may expose the
affected person to a fresh hearing and require them to give their
evidence again. Allowing appeals against interim orders may
62
also undermine the urgent, protective and temporary nature of
interim orders and delay final order proceedings. This restriction
will limit the jurisdiction of the Supreme Court and alter or vary
section 85 of the Constitution Act 1975. This clause does not
change the right to judicial review or the appeal rights that exist
for final orders.
Clause 115 inserts new section 182(2) into the Personal Safety Intervention
Orders Act 2010 and provides that it is the intention of
section 91 to alter or vary section 85 of the Constitution
Act 1975. This satisfies the requirements of section 85 of the
Constitution Act 1975 in respect of the changes effected by
clause 114.
Part 8--Amendments in relation to recorded statements
Part 8 of the Bill inserts new Division 7B in Part 8.2 of the Criminal
Procedure Act 2009 as part of the Government's response to
recommendation 58 of the Royal Commission. In certain circumstances,
new Division 7B will permit a pre-recorded statement by a complainant to
be used as the complainant's evidence-in-chief in a proceeding for a family
violence offence. Consistent with the Royal Commission recommendation,
the recorded evidence-in-chief scheme in new Division 7B will be trialled
and reviewed before the proposed sunset of the provisions.
Clause 116 inserts new Division 7B in Part 8.2 of the Criminal Procedure
Act 2009.
New section 387C
New section 387C(1) defines words and expressions used in
new Division 7B.
The term family violence offence is defined to mean--
an offence against section 37(2), 37A(2), 123(2),
123A(2) or 125A(1) of the Family Violence
Protection Act 2008; or
an offence where the conduct of the accused is family
violence within the meaning of the Family Violence
Protection Act 2008.
A recorded statement is defined to mean an audiovisual or
audio recording of a complainant answering questions put
to them by a trained police officer. The definition does not
require the recording to be made on any particular device,
63
avoiding the need to amend the definition if recording
technology changes. It should be noted that for the recorded
statement to be admissible, new section 387G(1)(c) provides
that the recording must be in audiovisual form outside of
the limited set of circumstances provided for in new
section 387G(2).
A trained police officer is defined as a police officer who has
successfully completed a training course approved by the Chief
Commissioner of Police under new section 387C(2).
New section 387C(2) provides the Chief Commissioner of Police
with the power to approve one or more training courses for the
purposes of new Division 7B. Conferring a power on the Chief
Commissioner of Police to approve training courses ensures that
training requirements can be adjusted from time to time, to keep
up with contemporary understandings of family violence.
New section 387D
New section 387D sets out the proceedings to which new
Division 7B is applicable.
New section 387D(1) provides that new Division 7B applies to
criminal proceedings (including a summary hearing, a committal
proceeding and a trial) that relates (wholly or partly) to a charge
for a family violence offence.
A note at the foot of new section 387D(1) highlights the fact that
new sections 387J and 387K set out other proceedings to which
new Division 7B may also apply.
New section 387D(2) provides that new Division 7B does not
apply if the accused was under the age of 18 years at the time
the family violence offence is alleged to have been committed.
New section 387E
New section 387E(1) provides that a complainant may give
evidence-in-chief (wholly or partly) in the form of a recorded
statement in accordance with new Division 7B.
New section 387E(2) sets out those matters to which the
prosecution must have regard in determining whether or not to
have a complainant give evidence wholly or partly in the form
of a recorded statement. It provides that the prosecution must
take into account--
64
the wishes of the complainant; and
any evidence of intimidation of the complainant
by the accused; and
the purpose of the Family Violence Protection
Act 2008.
New section 387F
New section 387F sets out the requirements for the use of a
recorded statement as evidence-in-chief.
New section 387F(1) provides that, subject to new Division 7B,
a recorded statement is admissible in evidence as if its contents
were the direct testimony of the complainant in the proceeding
and, unless the relevant court orders otherwise, in any new trial
of, or appeal from, the proceeding.
New section 387F(2) sets out the specific requirements for the
admissibility of a recorded statement under subsection (1).
Subject to new section 387F(4), which provides that a court
may rule as inadmissible the whole or any part of a recorded
statement, a recorded statement is admissible if the conditions
set out in new sections 387F(2)(a), (b), (c) and (d) are satisfied.
The conditions are--
the recorded statement complies with new section 387G,
which sets out the requirements for the making of
recorded statements; and
subject to subsection (3), a copy or transcript of the
statement has been served in accordance with new
section 387H; and
subject to subsection (3), if the accused is not
represented by a legal practitioner, the court is satisfied
that the accused was given a reasonable opportunity
to--
view the recorded statement if it is in the form of
an audiovisual recording; or
listen to the recorded statement if the recording
only exists in audio form and the accused has not
been served with a copy of it; and
65
at the hearing of the proceeding, the complainant--
identifies himself or herself and attests to the
truthfulness of the contents of the recorded
statement; and
is available for cross-examination and
re-examination.
New section 387F(3) provides that a recorded statement is
admissible under new section 387F(1) even if not all of the
conditions set out in new section 387F(2)(b) or (c) have been
satisfied, if the parties consent to its use as the complainant's
evidence-in-chief.
New section 387F(4) provides that the court may rule as
inadmissible the whole or any part of the content of a recorded
statement. If the court does so, it may direct that the recorded
statement be edited or otherwise altered to delete any part that
is inadmissible.
New section 387F(5) addresses what is a reasonable opportunity
for the purposes of new section 387F(2)(c). It provides that,
without limiting what is a reasonable opportunity, a reasonable
opportunity is taken to have been given if--
the accused was given an opportunity to view or listen
to the recorded statement while being questioned in
relation to the alleged family violence offence; or
the informant notified the accused in writing that the
accused had the right to view or listen to the recorded
statement on a day arranged with the informant.
New section 387G
New section 387G(1) sets out the details of the requirements for
the making of a recorded statement.
New section 387G(1)(a)(i) provides that a recorded statement
must be made as soon as practicable after the events constituting
the alleged family violence offence occurred. This provision
is intended to provide a degree of flexibility to ensure that a
complainant can seek medical treatment or have some time
to recover from the traumatic experience before making the
recorded statement.
66
New section 387G(1)(a)(ii) provides that the recorded statement
must be made with the complainant's informed consent.
The requirements for informed consent are set out in detail in
new section 387G(3).
New section 387G(1)(b) provides that a recorded statement must
include, at the end of the recording, an attestation by the
complainant as to the truth of the content of the statement.
New section 387G(1)(c) provides that the recorded statement
must be in audiovisual form unless the conditions of new
section 387G(2) are satisfied.
New section 387G(2) provides that in exceptional circumstances
and having regard to whether the accused would be unfairly
prejudiced, a court may admit as evidence-in-chief a recorded
statement in the form of an audio recording if an audiovisual
recording is not available. Such exceptional circumstances might
include an unforeseen technical failure in the recording process.
New section 387G(3) sets out the requirements for the informed
consent provided for in new section 387G(1)(a)(ii). It provides
that a recorded statement is made with informed consent if--
a trained police officer informs the complainant that--
the recorded statement may be used in evidence
in a criminal proceeding, a proceeding for a
family violence intervention order or, if a court
or tribunal orders, another proceeding; and
the complainant may be required to give
further evidence in the proceeding, including
further evidence-in-chief and evidence on
cross-examination and re-examination; and
the complainant may refuse consent to the
making of the recorded statement; and
the complainant indicates in the recorded statement
that the complainant--
understands the matters set out in new
section 387G(3)(a); and
consents to the making of the recorded
statement.
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New section 387G(4) allows for the recorded statement to be
used if any part of it is in a language other than English if the
statement contains an oral translation of the part into English,
or the statement is accompanied by a separate written English
translation of the relevant part.
New section 387H
New section 387H establishes the requirements for the service
of a recorded statement.
New section 387H(1) provides that a recorded statement must
be served on the accused or the accused's legal practitioner in
accordance with Part 3.2, Part 4.4 or Part 5.5 of the Criminal
Procedure Act 2009, as the case requires, subject to several
modifications that are set out in new sections 387H(1)(a) and (b).
New section 387H(1)(a) provides that if an accused is
represented by a legal practitioner, the legal practitioner must
be served with an audiovisual copy of the recorded statement
(or an audio copy if the statement is in audio form) but must
not give a copy of the recorded statement to the accused or allow
the accused to be given, or to take a copy of, the statement.
New section 387(H)(1)(b) provides that if the accused is not
represented by a legal practitioner, the accused must be served
with an audio copy of the recorded statement (whether the
recorded statement is in audio or audiovisual form) or, in the
circumstances set out in new section 387H(2), a transcript of
the recorded statement.
New section 387H(2) provides that an accused is to be served
with a transcript instead of an audio copy only if the informant
or prosecutor believes that--
serving an audio copy on the accused would be likely to
present a reasonably ascertainable risk that the accused
would commit an offence under new section 387L(1)
or (2) in relation to the recorded statement; or
in the particular circumstances of the accused, a
transcript is required.
New section 387L(1) provides for a new offence in relation to
publishing a recorded statement other than as permitted under
new section 387L.
68
New section 387L(2) provides for a new offence in relation
to copying or supplying a recorded statement other than as
permitted under new section 387L.
The option to serve only a transcript of a recorded statement
is intended to allow for a more protective approach to be taken
if, for example, there is considered to be a particular risk that
the accused will improperly share the audio of the recorded
statement.
New section 387H(3) provides for additional service
requirements if a recorded statement is to be used in a
committal proceeding or a trial on indictment. In those
cases, in addition to the service requirements contained
in section 387H(1), a transcript of the recorded statement
must be served on the accused or the accused's legal
practitioner in the same manner as the recorded statement
must be served under Part 4.4 or Part 5.5 of the Criminal
Procedure Act 2009, as the case requires.
New section 387I
New section 387I provides for the editing or altering of
recorded statements. A recorded statement may only be edited
or otherwise altered with the parties' consent or if editing or
altering the statement is required--
so as to avoid disclosure of material that is not
required to be disclosed, or must not be disclosed,
to the accused; or
to comply with a direction of the court under new
section 387F(4); or
for the purpose referred to in new section 387L(4)(h).
New section 387I sets out a number of examples of
circumstances in which editing or altering is required so
as to avoid disclosure of material that is not required to
be disclosed, or must not be disclosed, to the accused.
New section 387J
New section 387J provides for circumstances in which a court
or tribunal may order that a recorded statement be used in
proceedings other than those in which the statement is used
as evidence-in-chief under new section 387E or a proceeding
referred to in new section 387K. New section 387J(1) provides
69
that a court or tribunal may make such an order if satisfied that
it is in the interests of justice to do so.
In making an order, new section 387J(4) requires the court or
tribunal to have regard to the need to protect the privacy of the
complainant.
In accordance with new section 387J(3), a court or tribunal that
makes an order must also specify--
who may view or listen to the recording; and
when and where the recording is required to be
produced; and
if necessary, any requirements for the destruction
of the recording.
New section 387K
New section 387K provides for the limited use of recorded
statements in family violence intervention order proceedings.
A recorded statement may be used as evidence in a proceeding
for a family violence intervention order under the Family
Violence Protection Act 2008 if--
the application for the family violence intervention
order arises from the circumstances of the alleged
family violence offence in respect of which a recorded
statement has been made; or
in relation to the proceeding, an affected family member
is the complainant who made the recorded statement
and the respondent is the person accused of the family
violence offence to which the statement relates.
In both cases, it is immaterial whether or not the statement has
been used in proceedings referred to in new section 387D(1)
or whether or not any such proceedings have commenced.
New section 387K(3) defines certain terms for the purposes
of new section 387K. The terms affected family member,
family violence intervention order and respondent all have
the same meaning as they have in the Family Violence
Protection Act 2008.
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New section 387L
New section 387L(1) makes it an offence to publish a recorded
statement, unless permitted under new section 387L. The offence
has a maximum penalty of level 7 imprisonment (2 years).
New section 387L(2) makes it an offence for a person, other
than the complainant, to knowingly copy a recorded statement
or to knowingly supply a recorded statement or a copy of a
recorded statement to another person, unless permitted under
new section 387L. The offence has a maximum penalty of level 7
imprisonment (2 years). The complainant is excluded from the
offence provision in new section 387L(2) and therefore can
lawfully supply their own recorded statement to another person.
A person other than the accused or respondent, who is supplied
the recorded statement by the complainant is permitted to possess
the recorded statement due to new section 387L(5).
The accused or respondent is in a different position. An accused
or respondent who is served with a recorded statement in
accordance with the Act or provided with the recorded statement
in audio form by the complainant is permitted to possess the
recorded statement subject to new section 387H(2).
However, if the complainant supplies a copy of the recorded
statement to the accused or respondent in a form that is
prohibited under 387L(6), the accused or respondent will be
committing a possession offence due to new section 387L(3)
and (6). The complainant will not be criminally responsible for
their complicity in this offence due to new section 387L(7).
New section 387L(3) makes it an offence for a person, other
than the complainant, to knowingly possess a recorded statement
unless permitted to do so under new section 387L. The offence
has a maximum penalty of level 8 imprisonment (1 year).
The complainant is excluded from the offence provision in new
section 387L(3) and can therefore lawfully possess their own
recorded statement.
New section 387L(4) sets out the list of permitted purposes for
which a person may possess, publish, copy or supply a recorded
statement. A person may possess, publish or copy a recorded
statement, or supply a recorded statement or a copy of a recorded
statement to another person--
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for the purpose of investigating the family violence
offence to which the recorded statement relates; or
for the purpose of preparing for the proceeding in
which the recording statement is to be used in evidence
(expressly including the use of the recorded statement
in the preparation for a proceeding for a family violence
intervention order as referred to in new section 387K);
or
for the purpose of complying with a court order or a
tribunal order under new section 387J or for preparing
for a proceeding to which such an order relates; or
for the purpose of the performance of official functions
by a member of Victoria Police personnel, a member
of the staff of the Office of Public Prosecutions, or a
judicial officer, member or member of staff of a court
or tribunal; or
for the purpose of an investigation or inquest under the
Coroners Act 2008; or
for purposes connected with disciplinary action against
a police officer under the Victoria Police Act 2013; or
for purposes connected with an investigation into the
proper exercise of power by a public official, including
by the Independent Broad-based Anti-Corruption
Commission; or
for the purpose of training or teaching a prescribed
person or testing recording equipment if--
the accused to whom the statement relates has
been convicted or found guilty of the charge to
which the statement relates; and
all legal proceedings in relation to the subject
matter in the recorded statement have been
concluded; and
either the complainant consents to the use of the
recorded statement or the recorded statement is
edited or otherwise altered so as to prevent the
complainant and any person referred to in the
statement being identified; or
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for a purpose, or in the circumstances, prescribed by the
regulations.
New section 387L(5) provides that a person may possess a
recorded statement (whether in audiovisual or audio form) if
the statement was served on the person in accordance with the
Criminal Procedure Act 2009 or otherwise lawfully supplied
to that person, subject to new section 387L(6).
An example of what would amount to lawful supply under the
provisions in section 387L include a complainant supplying their
own recorded statement to another person. As noted above, if
the complainant supplies a copy of the recorded statement to the
accused or respondent in a form that is prohibited under 387L(6),
the accused or respondent will be committing a possession
offence due to new section 387L(3) and (6). The complainant
will not be criminally responsible for their complicity in this
offence due to new section 387L(7).
New section 387L(6) clarifies that--
new section 387L does not permit a person to supply
a recorded statement in audiovisual form to the accused
or respondent, or to allow them to copy, or obtain a
copy of, the recorded statement in that form; and
if an accused or a respondent was served only
with a transcript of a recorded statement under new
section 387H(2), they must not be provided with the
recorded statement in audio form.
New section 387L(7) provides that, for the purposes of
Subdivision 1 of Division 1 of Part II of the Crimes Act 1958
(complicity in commission of offences), a complainant is
not involved in the commission of an offence against new
section 387L by the accused or respondent and is not punishable
as a principal offender, only if the complainant supplies their
recorded statement to the accused or respondent.
New section 387L(8) provides that new section 387L does
not apply to the publication of a recorded statement as part of
the publication or supply of an official court recording of
proceedings.
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New section 387L(9) defines certain words and phrases for the
purposes of the new section 387L.
member of Victoria Police personnel has the same meaning in
section 387L as in the Victoria Police Act 2013.
prescribed person is defined to mean--
a member of Victoria Police personnel other than a
protective services officer;
a person or body engaged to provide services to Victoria
Police in relation to the installation or maintenance of
recording equipment;
a legal practitioner or a person training to become a
legal practitioner;
a person, or a person belonging to a class of persons,
prescribed for the purposes of new section 387L;
an investigating official (as defined in section 464(2)
of the Crimes Act 1958) or a person acting under an
investigating official's direction;
publish is defined to mean disseminating or providing access to
the public (or a section of the public) by any means, including
by publication in a book, newspaper, magazine or other written
publication, broadcast by radio or television, public exhibition or
broadcast or electronic communication.
respondent has the same meaning as in the Family Violence
Protection Act 2008.
New section 387M
New section 387M provides that, unless the contrary intention
appears, new Division 7B is in addition to the other provisions
of Part 8.2 of the Criminal Procedure Act 2009 and of the
Evidence Act 2008 and does not affect the operation of those
provisions or that Act. This is to ensure that statutory provisions
in Part 8.2 of the Criminal Procedure Act 2009 that protect
complainants remain in place, and that the provisions of the
Evidence Act 2008 such as the hearsay rule and various
privileges also remain in place. Specific examples are provided
as to the matters that new Division 7B does not affect.
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New section 387N
New section 387N provides that the Surveillance Devices
Act 1999 does not apply to a recorded statement made for
the purposes of new Division 7B. This provision is necessary
because restrictions on the use, communication and publication
of information in the Surveillance Devices Act 1999 apply to
information obtained from the use of a body-worn camera, a
device that may be used for taking of a recorded statement from
a complainant for use as their evidence-in-chief in a proceeding
for a family violence offence.
New section 387O
New section 387O establishes a review mechanism for the
operation of new Division 7B.
New section 387O(1) provides that the Chief Commissioner of
Police must cause an independent review of the operation of new
Division 7B to be undertaken. The review must be conducted by
a person who is not a member of Victoria Police personnel.
New section 387O(2) sets out a number of matters the
review provided for in new section 387O(1) must consider.
These issues were drawn from the Royal Commission report
and are as follows--
the impact of the operation of new Division 7B on the
time taken to finalise proceedings for family violence
offences, including the impact on the rate of guilty pleas
and convictions;
the use of recorded statements in proceedings for family
violence intervention orders, including the frequency of
the use and the outcome of proceedings in which they
were used;
the impact of the operation of new Division 7B on
police prosecutors, the Office of Public Prosecutions,
legal service providers and the courts, including the
role of transcripts in the preparation and conduct of
proceedings;
the impact of the operation of new Division 7B on the
experience of complainants during proceedings for
family violence offences and for family violence
intervention orders;
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any other matters that indicate whether the operation
of new Division 7B has led to the more efficient
administration of justice.
New section 387O(3) provides that the review must also consider
whether--
complainants should continue to be prohibited from
publishing their own recorded statements; and
other persons should be permitted to publish a recorded
statement with the complainant's consent.
New section 387O(4) provides that the Chief Commissioner
of Police must provide the responsible Minister with a written
report on the outcome of the review before the 3 rd anniversary
of the commencement of new Division 7B. This provision
will allow flexibility regarding the length of the review period,
to ensure that there is sufficient time to collect the data necessary
to review the operation of new Division 7B.
New section 387O(5) requires the responsible Minister to table
the report in each House of Parliament within 7 sitting days of
that House after the Minister receives the report.
New section 387P
New section 387P provides for the automatic repeal of new
Division 7B on the 4th anniversary of its commencement.
The provision reflects the fact that the use of recorded
evidence-in-chief in family violence offence proceedings
under new Division 7B is a trial only. The future of the
scheme will be considered further following completion
of the review provided for in new section 387O.
Part 9--Repeal of amending Act
Clause 117 provides that the Justice Legislation Amendment
(Family Violence Protection and Other Matters)
Act 2018 is repealed on 1 September 2021.
The repeal does not affect the continuing operation of
the amendments made by the Act (see section 15(1) of
the Interpretation of Legislation Act 1984).
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