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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Acts Amendment (Family and Domestic
Violence) Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Restraining Orders Act 1997
amended
3. The Act amended 3
4. Long title amended 3
5. Section 3 amended 3
6. Section 4 replaced 6
7. Section 6 replaced 8
8. Section 7 replaced by sections 7 and 7A 10
9. Section 8 repealed and Part 1A inserted 11
10. Section 10 amended 13
11. Section 11 replaced by sections 11, 11A and 11B 14
12. Section 12 amended 15
13. Section 13 amended 17
14. Section 16 amended 18
15. Section 27 amended 18
16. Section 28 amended 18
17. Section 29 amended 18
18. Division 3A inserted in Part 2 and consequential
amendments 19
19. Section 35 amended 26
20. Section 35A inserted 26
21. Section 36 amended 27
22. Heading to Part 4 amended 27
23. Section 42 amended 27
301--3 page i
Acts Amendment (Family and Domestic Violence) Bill 2004
Contents
24. Section 43 amended 28
25. Section 43A inserted and consequential amendments 28
26. Division 3 inserted in Part 4 31
27. Section 45 amended 33
28. Section 45A inserted 34
29. Section 46 amended 34
30. Section 47 amended 35
31. Section 48 amended 36
32. Section 48A inserted 36
33. Section 49 amended 37
34. Section 49A inserted 37
35. Heading to Part 6 Division 1 replaced 38
36. Sections 50A, 50B, 50C and 50D inserted 38
37. Sections 53A, 53B, 53C, 53D, 53E and 53F inserted 41
38. Section 55 amended and consequential amendment 43
39. Section 59 amended 44
40. Heading to Part 6 Division 3 amended 44
41. Section 61 amended 45
42. Section 62 replaced 46
43. Division 3A inserted in Part 6 and consequential
amendments 47
44. Section 63 amended 52
45. Section 63A, 63B and 63C inserted 53
46. Section 67 replaced 55
47. Section 69 amended 56
48. Section 70 replaced by sections 70 and 70A 56
49. Section 73 amended 59
50. Section 74 amended 59
51. Section 75 amended 59
52. Section 79B amended 60
53. Part 8 repealed 60
54. Various references to "applicant" amended 60
55. References to "person to be protected" amended 61
56. Notes about applicants under various sections
removed 61
57. Further amendments related to the Children and
Community Services Act 2004 61
Part 3 -- The Bail Act 1982 amended
58. Bail Act 1982 amended 63
59. Section 16A amended 63
page ii
Acts Amendment (Family and Domestic Violence) Bill 2004
Contents
60. Schedule 1 amended 63
61. Schedule 2 amended 63
Part 4 -- The Criminal Code amended
62. The Criminal Code amended 64
63. Heading to Chapter XXVI amended 64
64. Section 221 inserted 64
65. Section 297 amended 65
66. Section 301 amended 65
67. Section 313 amended 65
68. Section 317 amended 66
69. Section 317A amended 66
70. Section 319 amended 66
71. Section 338D amended 67
page iii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in committee)
Acts Amendment (Family and Domestic
Violence) Bill 2004
A Bill for
An Act to amend --
• the Restraining Orders Act 1997;
• the Bail Act 1982; and
• The Criminal Code.
The Parliament of Western Australia enacts as follows:
page 1
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Acts Amendment (Family and
Domestic Violence) Act 2004.
5 2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
page 2
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 3
Part 2 -- Restraining Orders Act 1997 amended
3. The Act amended
The amendments in this Part are to the Restraining Orders
Act 1997*.
5 [* Reprinted as at 6 October 2000.
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 329 and
Act No. 50 of 2003.]
4. Long title amended
10 The long title is amended by deleting "restraining orders, to
amend the Justices Act 1902 and various other Acts" and
inserting instead --
"
orders to restrain people from committing acts of family
15 and domestic or personal violence by imposing
restraints on their behaviour and activities
".
5. Section 3 amended
(1) Section 3 is amended by inserting in the appropriate
20 alphabetical positions the following definitions --
"
"act of abuse" means an act of family and domestic
violence or an act of personal violence;
"act of family and domestic violence" has the
25 meaning given by section 6;
"act of personal violence" has the meaning given by
section 6;
"application" means an application made under this
Act;
page 3
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 5
"CEO (child welfare)" means the Director-General
within the meaning of the Child Welfare Act 1947;
"Commissioner of Police" means the person holding
or acting in the office of Commissioner of Police
5 under the Police Act 1892;
"exposed", in relation to an act of abuse, includes --
(a) to see or hear the act of abuse; or
(b) to witness physical injuries resulting from
the act of abuse;
10 "family and domestic relationship" has the meaning
given by section 4;
"imagined personal relationship" means a
relationship where one person claims to have, or
have had, an intimate personal relationship, or
15 other personal relationship, with another person
but that other person disagrees with that claim;
"person who is bound", in relation to an order made
under this Act, means the person named in the
order on whose lawful activities and behaviour
20 restraints are imposed by the order;
"proceedings under this Act" means --
(a) the hearing of an application; or
(b) proceedings for an offence against this Act;
"property", in relation to a person, means property --
25 (a) owned by the person;
(b) in the care or custody of the person;
(c) used or enjoyed by the person, or available
for the person's use or enjoyment; or
(d) at premises where the person lives or works;
30 ".
page 4
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 5
(2) Section 3 is amended by deleting the definition of "person to be
protected" and "person protected" and inserting in the
appropriate alphabetical positions the following definitions --
"
5 "person protected" means a person named in an order
made under this Act as a person for whose benefit
the order is made;
"person seeking to be protected" means --
(a) the person who has applied for a violence
10 restraining order or a misconduct restraining
order; or
(b) if an application for a violence restraining
order or a misconduct restraining order has
been made on behalf of another person, the
15 person on behalf of whom the application is
made;
".
(3) Section 3 is amended by deleting the definitions of "applicant",
"on behalf of " and "violent personal offence".
20 (4) Section 3 is amended by deleting paragraph (a) of the definition
of "child welfare officer" and "or" after it and inserting
instead --
"
(a) the CEO (child welfare); or
25 ".
(5) Section 3 is amended in the definition of "corresponding law"
by deleting "a foreign country, means a law of the country that
empowers a court of the country" and inserting instead --
"
30 another State or Territory or a foreign country,
means a law of that State, Territory or country that
empowers a court of that State, Territory or
country
".
page 5
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 6
(6) Section 3 is amended in the definition of "final order" as
follows:
(a) by inserting after paragraph (ba) the following
paragraph --
5 "
(bb) made under section 41(1) at a mention
hearing with the consent of the respondent;
";
(b) in paragraph (d) by inserting after "section 63(4a)" --
10 " or 63A(3) ".
(7) Section 3 is amended by deleting the semicolon after the
definition of "violence restraining order" and inserting a full
stop instead.
6. Section 4 replaced
15 Section 4 is repealed and the following section is inserted
instead --
"
4. Meaning of "family and domestic relationship"
(1) In this Act --
20 "family and domestic relationship" means a
relationship between 2 persons --
(a) who are, or were, married to each other;
(b) who are, or were, in a de facto relationship
with each other;
25 (c) who are, or were, related to each other;
(d) one of whom is a child who --
(i) ordinarily resides, or resided, with the
other person; or
(ii) regularly resides or stays, or resided or
30 stayed, with the other person;
page 6
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 6
(e) one of whom is, or was, a child of whom the
other person is a guardian; or
(f) who have, or had, an intimate personal
relationship, or other personal relationship,
5 with each other.
(2) In subsection (1) --
"other personal relationship" means a personal
relationship of a domestic nature in which the lives
of the persons are, or were, interrelated and the
10 actions of one person affects, or affected, the other
person;
"related", in relation to a person, means a person
who --
(a) is related to that person taking into
15 consideration the cultural, social or religious
backgrounds of the 2 persons; or
(b) is related to the person's --
(i) spouse or former spouse; or
(ii) de facto partner or former de facto
20 partner.
".
page 7
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 7
7. Section 6 replaced
Section 6 is repealed and the following section is inserted
instead --
"
5 6. Meaning of "act of family and domestic violence"
and "act of personal violence"
(1) In this Act --
"act of family and domestic violence" means one of
the following acts that a person commits against
10 another person with whom he or she is in a family
and domestic relationship --
(a) assaulting or causing personal injury to the
person;
(b) kidnapping or depriving the person of his or
15 her liberty;
(c) damaging the person's property, including
the injury or death of an animal that is the
person's property;
(d) behaving in an ongoing manner that is
20 intimidating, offensive or emotionally
abusive towards the person;
(e) causing the person or a third person to be
pursued --
(i) with intent to intimidate the person; or
25 (ii) in a manner that could reasonably be
expected to intimidate, and that does in
fact intimidate, the person;
(f) threatening to commit any act described in
paragraphs (a) to (c) against the person.
page 8
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 7
(2) In this Act --
"act of personal violence" means one of the following
acts that a person commits against another person
with whom he or she is not in a family and
5 domestic relationship --
(a) assaulting or causing personal injury to the
person;
(b) kidnapping or depriving the person of his or
her liberty;
10 (c) causing the person or a third person to be
pursued --
(i) with intent to intimidate the person; or
(ii) in a manner that could reasonably be
expected to intimidate, and that does in
15 fact intimidate, the person;
(d) threatening to commit any act described in
paragraph (a) or (b) against the person;
(e) if the person who commits the act has an
imagined personal relationship with the
20 person against whom the act is committed,
an act that would constitute an act of family
and domestic violence if those persons were
in a family and domestic relationship.
(3) For the purposes of this Act, a person who procures
25 another person to commit an act of abuse, or part of
such an act, is to be taken to have also committed the
act himself or herself.
(4) In this section --
"assaulting" includes --
30 (a) an assault within the meaning of The
Criminal Code; and
page 9
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 8
(b) behaving in a manner described in
paragraph (a), (b) or (c) of section 319(3) of
The Criminal Code;
"intimidate" has the same meaning as in section 338D
5 of The Criminal Code;
"kidnapping or depriving the person of his or her
liberty " includes behaving in a manner described
in section 332 of The Criminal Code;
"pursue" has the same meaning as in section 338D of
10 The Criminal Code.
".
8. Section 7 replaced by sections 7 and 7A
Section 7 is repealed and the following sections are inserted
instead --
15 "
7. Persons protected, and bound, by order to be
natural persons
A person protected by an order under this Act, and a
person bound by an order under this Act, must be
20 natural persons.
7A. Orders under this Act imposing restraints
An order imposing restraints may be made under this
Act by --
(a) a court of petty sessions hearing an application
25 under section 25, 38 or 45;
(b) the Children's Court hearing an application
under section 25, 38 or 45;
(c) an authorised magistrate hearing a telephone
application;
30 (d) a court acting under section 63 or 63A; or
page 10
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 9
(e) a police officer acting under Part 2
Division 3A.
".
9. Section 8 repealed and Part 1A inserted
5 Section 8 is repealed and the following Part is inserted
instead --
"
Part 1A -- Restraining orders generally
8. Explanation about orders to be given
10 (1) Subject to this section, a court that makes a restraining
order is to explain, as is appropriate, to --
(a) the person who is bound by the order; and
(b) the --
(i) person protected by the order; or
15 (ii) parent or guardian of that person, if the
parent or guardian made the application
for the order on behalf of that person,
who are in court when the order is made --
(c) the purpose, terms and effects of the order,
20 including that the order may be registered and
enforced in another Australian jurisdiction;
(d) the consequences that may follow if the person
who is bound by the order contravenes the
order;
25 (e) the consequences that may follow if the person
protected by the order --
(i) encourages or invites the person who is
bound by the order to contravene the
order; or
page 11
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 9
(ii) by his or her actions causes the person
who is bound by the order to breach the
order;
(f) that the order must be varied or cancelled if the
5 person who is bound by the order and the
person protected by the order intend to have
contact or reconcile with the other person;
(g) how the order may be varied, cancelled or
extended;
10 (h) if the order is a violence restraining order, the
effects of sections 14 and 62E relating to
firearms; and
(i) that counselling and support services may be of
assistance, and where appropriate, the court is
15 to refer the person to specific services.
(2) If a person to whom an explanation is to be given under
subsection (1) does not readily understand English, or
the court is not satisfied that the person understood the
explanation, the court is, as far as practicable, to
20 arrange for someone else to give the explanation to the
person in a way that the person can understand.
(3) If --
(a) a person referred to in subsection (1)(a) or (b) is
not present in court when the order is made; or
25 (b) it is not practicable for the court to give the
explanation at the time the restraining order is
made,
then the clerk is to cause a document containing the
explanation to be --
30 (c) in the case of subsection (1)(a), served on the
person; and
(d) in the case of subsection (1)(b), delivered to the
person.
page 12
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 10
(4) An order is not invalid merely because a person who
should have been given the explanation referred to in
subsection (1) was not given the explanation.
".
5 10. Section 10 amended
(1) Section 10(1)(b) is amended by deleting "delivered to the
applicant" and inserting instead --
"
delivered to --
10 (i) the person seeking to be protected by
the order; or
(ii) the parent or guardian of that person, if
the parent or guardian made the
application for the order on behalf of
15 that person
".
(2) Section 10(2)(b) is amended by deleting "delivered to the
applicant" and inserting instead --
"
20 delivered to --
(i) the person seeking to be protected by
the order; or
(ii) the parent or guardian of that person,
where the parent or guardian made the
25 application for the order on behalf of
that person
".
page 13
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 11
11. Section 11 replaced by sections 11, 11A and 11B
Section 11 is repealed and the following sections are inserted
instead --
"
5 11. Violence restraining order to specify names of
person bound, and person protected, by the order
A violence restraining order is to specify --
(a) the name of the person for whose benefit the
order is made; and
10 (b) the name of the person on whose lawful
activities and behaviour restraints are imposed
by the order.
11A. When violence restraining orders may be made
A court may make a violence restraining order if it is
15 satisfied that --
(a) the respondent has committed an act of abuse
against a person seeking to be protected and the
respondent is likely again to commit such an
act against that person; or
20 (b) a person seeking to be protected, or a person
who has applied for the order on behalf of that
person, reasonably fears that the respondent
will commit an act of abuse against the person
seeking to be protected,
25 and that making a violence restraining order is
appropriate in the circumstances.
page 14
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 12
11B. Violence restraining order may be made for child in
circumstances of family and domestic violence
A violence restraining order may be made for the
benefit of a child if the court is satisfied that --
5 (a) the child has been exposed to an act of family
and domestic violence committed by or against
a person with whom the child is in a family and
domestic relationship and the child is likely
again to be exposed to such an act; or
10 (b) the applicant, the child or a person with whom
the child is in a family and domestic
relationship reasonably fears that the child will
be exposed to an act of family and domestic
violence committed by or against a person with
15 whom the child is in a family and domestic
relationship,
and that making a violence restraining order is
appropriate in the circumstances.
".
20 12. Section 12 amended
(1) Section 12(1)(a) is amended by deleting "applicant is protected
from personal violence" and inserting instead --
"
person seeking to be protected is protected from
25 acts of abuse
".
(2) Section 12(1)(b) is amended by deleting "the applicant will
suffer personal violence" and inserting instead --
"
30 the person seeking to be protected will have
committed against him or her an act of abuse
".
page 15
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 12
(3) After section 12(1)(b) the following paragraph is inserted --
"
(ba) the need to ensure that children are not exposed
to acts of family and domestic violence;
5 ".
(4) After section 12(1)(d) the following paragraph is inserted --
"
(da) the past history of the respondent and the
person seeking to be protected with respect to
10 applications under this Act, whether in relation
to the same act or persons as are before the
court or not;
".
(5) Section 12(2) is amended by deleting "and (c)" and inserting
15 instead --
" , (ba) and (c) ".
(6) After section 12(2) the following subsections are inserted --
"
(3) In having regard to the matters set out in
20 subsection (1)(da), a past history of applications under
this Act is not to be regarded in itself as sufficient to
give rise to any presumption as to the merits of the
application.
(4) The Commissioner of Police, is, where practicable, to
25 provide to a court any information in the possession of
the Police Force of Western Australia referred to in
subsection (1)(h) or (i) that is relevant to a matter
before the court.
".
page 16
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 13
13. Section 13 amended
(1) Section 13(1)(a) and "or" after it is deleted and the following is
inserted instead --
"
5 (a) committing an act of abuse against the person
seeking to be protected;
(aa) if the person seeking to be protected by the
order is a child, exposing a child to an act of
abuse committed by the respondent; or
10 ".
(2) Section 13(1)(b) is amended by deleting "the applicant (or if the
application is made by another person on behalf of the
applicant, that other person) to fear that the respondent will
commit such an offence." and inserting instead --
15 "
fear that the respondent will commit such an
act.
".
(3) Section 13(2)(e) is amended by inserting after "from" --
20 " obtaining and ".
(4) After section 13(4) the following subsection is inserted --
"
(5) If a violence restraining order imposes a restraint
referred to in subsection (4) or for some other reason
25 the court is satisfied that it is necessary to do so, the
court is to ensure that the order makes provision for the
person seeking to be protected or the respondent to
recover personal, and other prescribed, property from a
place specified in the order --
30 (a) in the manner set out by the court in the order;
or
page 17
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 14
(b) in accordance with the procedures set out in the
regulations.
".
14. Section 16 amended
5 Section 16(5)(c) is amended by deleting "becomes final order"
and inserting instead --
" becomes a final order ".
15. Section 27 amended
After section 27(3) the following subsections are inserted --
10 "
(4) A hearing fixed under section 26(2) is to be heard in
closed court and, at that hearing, the person seeking to
be protected is entitled to have near to him or her a
person, or more than one person, to provide support.
15 (5) A person to provide support is to be approved by the
court and is not to be a person who is a witness in, or a
party to, the proceedings.
".
16. Section 28 amended
20 Section 28(1) is amended by deleting "court may accept
affidavits of evidence" and inserting instead --
"
applicant may provide evidence by affidavit in support
of the application and the court must accept such
25 affidavit
".
17. Section 29 amended
Section 29(1) is amended as follows:
(a) after paragraph (b) by deleting "or";
page 18
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 18
(b) after paragraph (c) by deleting the full stop and
inserting --
"
; or
5 (d) at the request of the applicant, discontinue the
application.
".
18. Division 3A inserted in Part 2 and consequential
amendments
10 (1) After section 30 the following Division is inserted --
"
Division 3A -- Police officers may make police orders
where family and domestic violence
30A. When a police order may be made
15 (1) A police officer may make a police order in accordance
with this Division if the officer reasonably believes that
the case meets the criteria set out in section 20(1)(a) or
(b) as if the order were to be a violence restraining
order and --
20 (a) if the officer reasonably believes that --
(i) a person has committed an act of family
and domestic violence and is likely
again to commit such an act; or
(ii) a child has been exposed to an act of
25 family and domestic violence
committed by or against a person with
whom the child is in a family and
domestic relationship and the child is
likely again to be exposed to such an
30 act;
or
page 19
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 18
(b) if the officer reasonably fears, or reasonably
believes that another person reasonably fears,
that --
(i) a person will have committed against
5 him or her an act of family and domestic
violence; or
(ii) a child will be exposed to an act of
family and domestic violence
committed by or against a person with
10 whom the child is in a family and
domestic relationship,
and that making a police order is necessary to ensure
the safety of a person.
(2) A police officer may make a police order whether or
15 not an application for an order has been made.
(3) A police officer must not make a police order if a
telephone application has been dismissed under
section 23(1)(b) in relation to the same facts.
30B. Matters to be considered by police officer
20 In considering whether to make a police order, and the
terms of a police order, a police officer is to have
regard to --
(a) the need to ensure that a person is protected
from acts of family and domestic violence;
25 (b) the need to prevent behaviour that could
reasonably be expected to cause fear that a
person will have committed against him or her
an act of family and domestic violence;
(c) the need to ensure that children are not exposed
30 to acts of family and domestic violence;
page 20
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 18
(d) the welfare of children likely to be affected by
the behaviour of the persons involved or the
operation of a proposed order;
(e) the accommodation needs of the persons
5 involved;
(f) hardship that may be caused if the order is
made;
(g) any similar behaviour by any person involved,
whether in relation to the same person or
10 otherwise; and
(h) any other matter the police officer considers
relevant.
30C. Restraints that may be imposed
(1) In making a police order a police officer may impose
15 such restraints on the lawful activities and behaviour of
a person as the officer considers appropriate to prevent
a person --
(a) committing an act of family and domestic
violence; or
20 (b) behaving in a manner that could reasonably be
expected to cause a person to fear that such an
act will be committed.
(2) Without limiting the restraints that may be imposed, a
police officer may restrain a person from doing all or
25 any of the following --
(a) being on or near premises where a person lives
or works;
(b) approaching within a specified distance of
another person;
30 (c) causing or allowing another person to engage in
conduct of a type referred to in paragraph (a) or
(b).
page 21
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 18
(3) A restraint may be imposed on a person absolutely or
on such terms as the police officer considers
appropriate.
(4) A police order may restrain a person from entering or
5 remaining in a place, or restrict a person's access to a
place, even if the person has a legal or equitable right
to be at the place.
(5) A police officer making a police order is to ensure that
the order made is as least restrictive of the personal
10 rights and liberties of the person to be bound by the
order as possible while still ensuring that the person for
whose benefit the order is made is protected from acts
of abuse.
30D. Children not to be restrained by police orders
15 A police order cannot impose restraints on a child.
30E. Police order to be prepared, served and explained
(1) A police officer who makes an order under this
Division is to prepare and serve the order.
(2) A police order is to specify --
20 (a) the name of the person for whose benefit the
order is made; and
(b) the name of the person on whose lawful
activities and behaviour restraints are imposed
by the order.
25 (3) A police officer who makes a police order is to explain
at the time the order is made, or served, to the person
who is bound by the order, and the person for whose
benefit the order is made --
(a) the purpose, duration, terms and effects of the
30 order;
page 22
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 18
(b) the consequences that may follow if the person
who is bound by the order contravenes the
order;
(c) that counselling and support service may be of
5 assistance, and where appropriate, the police
officer is to refer the person to specific services.
(4) If a person to whom an explanation is to be given under
subsection (3) does not readily understand English, or
the police officer is not satisfied that the person
10 understood the explanation, the officer is, as far as
practicable, to arrange for someone else to give the
explanation to the person in a way that the person can
understand.
(5) A police order is not invalid merely because --
15 (a) the police officer did not give the explanation
referred to in subsection (3) or arrange for
someone else to give the explanation; or
(b) a person whom the police officer arranged to
give the explanation did not give the
20 explanation.
30F. Duration of police orders
(1) A police order is to be either a 24 hour police order or a
72 hour police order.
(2) A 24 hour police order --
25 (a) remains in force for 24 hours after it has been
served on the person to be bound by it; and
(b) if it is not served on the person to be bound by
it within 2 hours of the order being made, the
order lapses.
30 (3) A 72 hour police order --
(a) remains in force for 72 hours (or such shorter
time as is specified in the order which, in the
page 23
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 18
opinion of the police officer, would be a
sufficient time for an application to be made to
a court under Division 3) after it has been
served on the person to be bound by it; and
5 (b) lapses if it is not served on the person to be
bound by it within 24 hours of the order being
made.
(4) A police order is to specify the duration of the order.
30G. Consent required for 72 hour police orders
10 A 72 hour police order cannot be made unless consent
to the making of the order has been given --
(a) by the person who is to be protected by the
order; or
(b) if the person who is to be protected by the
15 order --
(i) is a child, by a parent or guardian of the
child, or a child welfare officer; or
(ii) is a person for whom a guardian has
been appointed under the Guardianship
20 and Administration Act 1990, by the
guardian.
30H. Order not to be renewed by police officer
The duration of a police order cannot be extended or
renewed and another police order cannot be made in
25 relation to the same facts.
30I. Review of Division
(1) The Minister is to carry out a review of the operation
and effectiveness of this Division as soon as is
practicable after the expiration of 24 months from the
30 commencement of section 18 of the Acts Amendment
(Family and Domestic Violence) Act 2004 and in the
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Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 18
course of that review the Minister is to consider and
have regard to --
(a) the effectiveness of this Division;
(b) the need for the retention of this Division; and
5 (c) any other matters that appear to the Minister to
be relevant to the operation and effectiveness of
this Division.
(2) Without limiting subsection (1), in carrying out a
review under that subsection, the Minister is to consult
10 with and have regard to the views of the Commissioner
of Police.
(3) The Minister is to prepare a report based on the review
and, as soon as is practicable after the report is
prepared is to cause it to be laid before each House of
15 Parliament.
".
(2) Section 3 is amended by inserting in the appropriate
alphabetical position the following definition --
"
20 "police order" means an order made by a police
officer under Part 2 Division 3A;
".
(3) After section 10(3) the following subsection is inserted --
"
25 (4) If a police officer is to prepare and serve a police order
the officer is to prepare the order in the prescribed form
and cause --
(a) a copy of the order to be given to the person to
be bound by it;
30 (b) a copy of the order to be given to the person for
whose benefit the order is to be made; and
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Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 19
(c) the police copy of the order to be delivered to
the Commissioner of Police.
".
(4) Section 18(3) is amended by inserting after "20(1)" --
5 " (a) or (b) ".
(5) Section 20(3) is amended by inserting after "subsection (2)" --
" , or the failure by a police officer to make a police order, ".
(6) Section 21(4)(b) is amended by inserting after "20(1)" --
" (a) or (b) ".
10 (7) The heading to Part 2 Division 3 is amended by inserting after
"person" --
" to a court ".
19. Section 35 amended
(1) Section 35(1)(e) is deleted.
15 (2) Section 35(2)(e) is deleted.
20. Section 35A inserted
After section 35 the following section is inserted --
"
35A. Misconduct restraining orders not for persons in a
20 family and domestic relationship
A court is not to make a misconduct restraining order
unless it is satisfied that the person seeking to be
protected by the order and the person bound by the
order are not in a family and domestic relationship with
25 each other.
".
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Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 21
21. Section 36 amended
Section 36(2)(e) is deleted.
22. Heading to Part 4 amended
The heading to Part 4 is amended by inserting after
5 "Hearings" --
" and evidence ".
23. Section 42 amended
(1) Section 42(2)(a) is amended by inserting before "to hear" --
" , subject to subsection (3), ".
10 (2) Section 42(3) is repealed and the following subsections are
inserted instead --
"
(3) If --
(a) a respondent does not attend a final order
15 hearing;
(b) the applicant does attend;
(c) the court is satisfied in accordance with
subsection (2)(a); and
(d) an earlier restraining order is in force in respect
20 of the matter,
the court is to make a final order in the same terms as
the earlier order unless any new ground or matter is
raised by the applicant at the final order hearing.
(4) At a final order hearing --
25 (a) attended by the applicant but not by the
respondent; or
(b) attended by both the applicant and the
respondent,
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Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 24
subject to the rules of evidence, a court is to receive as
evidence any record of evidence given (including any
affidavit filed) at a prior hearing in relation to the
application, except that such record of evidence is not
5 to be received as evidence unless the person who gave
the evidence is available to be cross-examined on that
evidence.
".
24. Section 43 amended
10 Section 43(2) is repealed and the following subsections are
inserted instead --
"
(2) If, at a final order hearing, the respondent consents to a
final order being made, the court may make the order
15 by consent without being satisfied there are grounds for
making the order.
(3) If a respondent consents to a final order being made,
the consent does not constitute an admission by the
respondent of all or any of the matters alleged in the
20 application.
".
25. Section 43A inserted and consequential amendments
(1) After section 43 the following section is inserted --
"
25 43A. Decision under s. 42 in default of appearance may
be set aside
(1) In this section --
"respondent", in respect of a decision to dismiss an
application in default of appearance of the
30 applicant, means the person who was the
respondent at the final order hearing at which the
decision was dismissed.
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Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 25
(2) Where the court --
(a) has dismissed an application in default of
appearance of the applicant under
section 42(1)(a), that applicant may, within
5 21 days of becoming aware that the application
was dismissed; or
(b) has made a restraining order under section 42 in
default of appearance of the respondent, that
respondent may within 21 days of the order
10 being served on the respondent,
or such further period as the court may allow at a
hearing fixed under subsection (3), apply to the court,
in the prescribed form setting out the grounds of the
application, to have that decision set aside.
15 (3) On receiving an application under subsection (2) the
clerk is to fix a hearing, to be held in the absence of the
other party to the proceedings, at which, subject to
subsection (4), the court --
(a) where the application was made out of time, is
20 to grant leave for the person to continue the
application out of time if satisfied that there
was a reasonable excuse for not commencing
the application within the time allowed; and
(b) after taking into account the grounds of the
25 application, is to --
(i) adjourn the hearing of the matter to
allow the other party to oppose the
matter if satisfied that the person who
made the application may have had a
30 reasonable cause not to attend the
hearing at which the application was
dismissed, or the restraining order
made; or
(ii) dismiss the application.
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Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 25
(4) If the applicant does not attend a hearing fixed under
subsection (3), the court, if it is satisfied that the
applicant was notified of the hearing, is to dismiss the
application.
5 (5) If the court adjourns the matter under
subsection (3)(b)(i) the clerk is to fix a hearing and
summons the other party to the hearing.
(6) At a hearing fixed under subsection (5), where the
other party is present, or if the other party is not present
10 the court is satisfied the other party was served with the
summons, the court is to hear the matter and --
(a) if satisfied that the applicant had reasonable
cause not to attend the hearing at which the
application was dismissed or the restraining
15 order made, is to set aside the decision made
under section 42; or
(b) is to dismiss the application.
(7) Where, under subsection (6)(a), the court sets aside a
decision made under section 42 --
20 (a) if, immediately before the hearing at which the
decision under section 42 was made, an earlier
order was in force in respect of the matter, the
court is to make an interim order in the same
terms as the earlier order, unless any new
25 ground or matter is raised at the hearing fixed
under subsection (3) or (5); and
(b) the clerk is to fix a hearing as soon as is
practicable and summons the respondent to the
hearing.
30 (8) The clerk is to prepare and serve an interim order made
under subsection (7)(a).
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Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 26
(9) At a hearing fixed under subsection (7)(b) the court is
to re-hear the matter under section 42.
".
(2) Section 3 is amended in the definition of "final order hearing"
5 by deleting "or 41(4)" and inserting instead --
" , 41(4) or 43A(7)(b) ".
(3) Section 3 is amended in the definition of "interim order" by
inserting after "29(1)(a)" --
" , 43A(7)(a) ".
10 (4) Section 42(2)(a)(ii) is amended by deleting "or 41(4)" and
inserting instead --
" , 41(4) or 43A(7)(b) ".
26. Division 3 inserted in Part 4
After section 44 the following Division is inserted in Part 4 --
15 "
Division 3 -- Evidence
44A. Rules of evidence not to apply at ex-parte hearing
(1) At a hearing fixed under section 26(2) --
(a) a court is not bound by the rules of evidence;
20 (b) a court may inform itself on any matter in such
manner as it considers appropriate; and
(c) without limiting paragraph (b), evidence of a
representation about a matter that is relevant to
the application is admissible as evidence,
25 despite the rule against hearsay.
(2) The court may give such weight as it thinks fit to
evidence admitted under subsection (1)(c).
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Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 26
(3) In this section --
"representation" includes an express or implied
representation, whether oral or in writing, and a
representation inferred from conduct.
5 44B. Access to affidavit evidence
Subject to section 70, at the request of a party to an
application, the clerk of the court where the application
was made is to provide to the person a copy of any
affidavit received in evidence in relation to the
10 application.
44C. Cross-examination of person in family and domestic
relationship with cross-examiner
(1) If in any proceedings under this Act a respondent, or a
person who is bound by an order --
15 (a) is not represented; and
(b) wishes to cross-examine a person with whom
the examiner is in a family and domestic
relationship, or an imagined personal
relationship,
20 the court is to order that the examiner --
(c) is not entitled to do so directly; but
(d) may put any question to the person to be
examined by stating the question to a judicial
officer or a person approved by the court,
25 and that person is to repeat the question accurately to
the person to be examined.
(2) Subsection (1) does not apply --
(a) if --
(i) the person to be examined requests that
30 the order not be made; and
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Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 27
(ii) the court considers it appropriate in all
the circumstances for the order not to be
made;
or
5 (b) if the court is of the opinion that it is not just or
desirable for such an order to be made.
".
27. Section 45 amended
(1) Section 45(1) is amended by deleting "final" and inserting
10 instead --
" restraining ".
(2) Section 45(2) is amended by deleting "final" and inserting
instead --
" restraining ".
15 (3) Section 45(4) is repealed and the following subsections are
inserted instead --
"
(4) An application to vary or cancel a restraining order is
to be made in the prescribed form to the court that
20 made the order.
(5) The form prescribed under subsection (4) is to contain
a brief summary of the effect of subsection (6).
(6) If an application is made to vary --
(a) a restraining order that is a final order; or
25 (b) a misconduct restraining order,
which includes an application to vary the order by
extending the duration of the order, then, despite
anything else in this Act, the order is not to expire
before the application is determined if the person
page 33
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 28
bound by the order has been given a copy of the
application.
".
28. Section 45A inserted
5 After section 45 the following section is inserted --
"
45A. Application by CEO (child welfare)
(1) Where the CEO (child welfare) intervenes in
proceedings under section 50D by making an
10 application to vary or cancel a violence restraining
order, the clerk is to fix a hearing for that purpose and
notify the CEO (child welfare) and the parties to the
application for the violence restraining order of the
hearing.
15 (2) If the CEO (child welfare) has specified on an
application referred to in subsection (1) that the
application needs to be heard as a matter of urgency
then the time fixed for the hearing under subsection (1)
is to be as soon as possible.
20 (3) Sections 54(1) and 56(2) do not apply in respect of an
urgent hearing fixed under subsection (2).
".
29. Section 46 amended
(1) Section 46(1) is amended by deleting "final" and inserting
25 instead --
" restraining ".
page 34
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 30
(2) Section 46(4) is repealed and the following subsection is
inserted instead --
"
(4) Subject to subsection (3), at a hearing fixed under
5 subsection (1) the court --
(a) is to grant leave for the person to continue the
application to vary or cancel the order if it is
satisfied that --
(i) there is evidence to support a claim that
10 a person protected by the order has
persistently invited or encouraged the
applicant to breach the order, or by his
or her actions has persistently attempted
to cause the applicant to breach the
15 order;
(ii) there has been a substantial change in
the relevant circumstances since the
order was made; or
(iii) in respect of an application to vary an
20 interim order, there is evidence to
support a claim that the restraints
imposed by the order are causing the
applicant serious and unnecessary
hardship and that it is appropriate that
25 the application is heard as a matter of
urgency;
or
(b) otherwise, is to dismiss the application.
".
30 30. Section 47 amended
Section 47(2) is amended as follows:
(a) by deleting " final" and inserting instead --
" restraining ";
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Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 31
(b) by deleting paragraph (a)(i).
31. Section 48 amended
Section 48(3) is repealed and the following subsection is
inserted instead --
5 "
(3) At a hearing referred to in subsection (2) --
(a) attended by the applicant but not by a person
summonsed under section 47(1) or 47(2) or a
police officer nominated under section 47(3); or
10 (b) attended by both the applicant and by a person
summonsed under section 47(1) or 47(2) or a
police officer nominated under section 47(3),
subject to the rules of evidence, a court is to receive as
evidence any record of evidence given (including any
15 affidavit filed) at a prior hearing in relation to the
application, or the application for the original
restraining order, except that such record of evidence is
not to be received as evidence unless the person who
gave the evidence is available to be cross-examined on
20 that evidence.
".
32. Section 48A inserted
After section 48 the following section is inserted --
"
25 48A. Ex parte application to cancel order by person
protected by order
(1) In an application to cancel a restraining order made
under section 45(1)(a) the applicant may indicate that
he or she wishes to have the application heard in the
30 absence of the person who is bound by the order.
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Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 33
(2) If the applicant wishes to have the application heard in
the absence of the person who is bound by the order,
the clerk is to fix a hearing for that purpose.
".
5 33. Section 49 amended
(1) After section 49(1) the following subsection is inserted --
"
(1a) At a hearing fixed under section 48A the court may
cancel the original restraining order.
10 ".
(2) Section 49(2) is amended by deleting "subsection (1)" and
inserting instead --
" subsection (1) or (1a) ".
(3) After section 49(4) the following subsection is inserted --
15 "
(5) The cancellation of an order under subsection (1a) has
effect at the conclusion of the hearing at which the
order is cancelled.
".
20 34. Section 49A inserted
After section 49 the following section is inserted in Part 5 --
"
49A. Correcting minor errors in restraining orders
(1) Where a restraining order contains --
25 (a) a clerical mistake;
(b) an error arising from an accidental slip or
omission; or
(c) a material mistake in the description of any
person, thing or matter referred to in the order,
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Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 35
the clerk may correct the order, or the court, on an
application by, or on behalf of, the person protected, or
the person who is bound, by the order, may make an
order correcting the restraining order.
5 (2) Subsection (1) does not apply if the correction would
adversely affect the interests of the person protected, or
the person who is bound, by the order.
".
35. Heading to Part 6 Division 1 replaced
10 The heading to Part 6 Division 1 is deleted and the following
heading is inserted instead --
"
Division 1 -- Children
".
15 36. Sections 50A, 50B, 50C and 50D inserted
After section 50 the following sections are inserted --
"
50A. Restraining order against child not to exceed
6 months
20 A restraining order that is a final order made against a
child is to have a duration of 6 months or less, unless
the order is made under section 63A.
50B. Child welfare laws not affected
(1) A court must not make a restraining order under this
25 Act in relation to a child who is under the control or in
the care (however described) of a person under a child
welfare law unless --
(a) the order is made as a result of the intervention
of the CEO (child welfare) under section 50D;
30 or
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Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 36
(b) the order is made in proceedings that have been
instigated or continued with the written consent
of a person who, under the relevant child
welfare law, has responsibility for the control
5 or care (however described) of the child.
(2) Nothing in this Act, and no restraining order made
under this Act, affects --
(a) the jurisdiction of a court or the power of an
authority, under a child welfare law, to make an
10 order, or to take any other action, by which a
child is placed under control or in the care
(however described) of a person under a child
welfare law;
(b) any such order made or action taken; or
15 (c) the operation of a child welfare law in relation
to a child.
(3) If it appears to a court that another court or an authority
proposes to make an order, or to take any other action,
of the kind referred to in subsection (2)(a) in relation to
20 a child, the court may adjourn any proceedings before
it that relate to the child.
(4) In this section --
"child welfare law" has the same meaning as in the
Family Court Act 1997.
25 50C. CEO (child welfare) to be notified before certain
orders are made
(1) Before a court makes a violence restraining order
where --
(a) the respondent is a child who has not attained
30 the age of 16 years; and
page 39
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 36
(b) the person seeking to be protected by the order
is --
(i) a parent or guardian of the child; or
(ii) a person responsible for the day to day
5 care of the child, or with whom the
child habitually resides,
the clerk is to notify the CEO (child welfare) that such
an order may be made.
(2) If an order referred to in subsection (1) is made the
10 CEO (child welfare) is to cause such inquiries to be
made as the CEO (child welfare) considers necessary
for the purpose of determining whether action should
be taken to safeguard or promote the child's wellbeing.
50D. Intervention by CEO (child welfare)
15 (1) In any proceedings under this Act that affect, or may
affect, the welfare of a child the court hearing the
proceedings may request the CEO (child welfare) to
intervene in the proceedings and the CEO (child
welfare) may intervene in those proceedings on that
20 request.
(2) The CEO (child welfare) may intervene in any
proceedings under this Act --
(a) if they involve a child who, in the opinion of
the CEO (child welfare), appears to be a child
25 in need of care and protection within the
meaning of the Child Welfare Act 1947; or
(b) if, in the opinion of the CEO (child welfare),
the operation of a restraining order has affected,
or may affect, the welfare of a child.
30 (3) If the CEO (child welfare) intervenes in proceedings
the CEO (child welfare) is to be treated as a party to
page 40
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 37
the proceedings with all the rights, duties and liabilities
of a party.
".
37. Sections 53A, 53B, 53C, 53D, 53E and 53F inserted
5 After section 53 the following sections are inserted in Part 6
Division 1 --
"
53A. Children not to give oral evidence without leave of
court, other than in Children's Court
10 (1) A child is not to give oral evidence in any proceedings
under this Act unless --
(a) a court makes an order allowing the child to
give oral evidence; or
(b) the evidence is given in the Children's Court.
15 (2) A court is not to make an order under subsection (1)(a)
unless the court, having weighed the availability of
other evidence and the interests of the child, is satisfied
that exceptional circumstances exist which, in the
interests of justice, justify the making of the order.
20 53B. Evidence of children
(1) This section applies where --
(a) in accordance with section 53A, a child is
giving oral evidence in any proceedings under
this Act; and
25 (b) the necessary facilities and equipment are
available.
(2) If this section applies, the child is to give evidence
outside the courtroom but within the court precincts,
and the evidence is to be transmitted to the courtroom
30 by means of video link.
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Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 37
(3) Where arrangements are made under this section the
child's evidence is to be visually recorded.
(4) In this section --
"video link" has the same meaning as in section 120 of
5 the Evidence Act 1906.
53C. Child who gives evidence entitled to support
(1) A child giving oral evidence in any proceedings under
this Act in accordance with section 53A is entitled to
have near to him or her a person, or more than one
10 person, to provide support.
(2) A person to provide support is to be approved by the
court and is not to be a person who is a witness in, or a
party to, the proceedings.
53D. Cross-examination of child by unrepresented
15 person
If, in any proceedings under this Act, a person who is
not represented wishes to cross-examine a child who,
in accordance with section 53A, has given oral
evidence, the examiner --
20 (a) is not entitled to do so directly; but
(b) may put any question to the child by stating the
question to a judicial officer or a person
approved by the court,
and that person is to repeat the question accurately to
25 the child.
53E. Admissibility of evidence of representations made
by children
(1) Evidence of a representation made by a child about a
matter that is relevant to proceedings under this Act is
30 admissible as evidence in those proceedings, despite
the rule against hearsay.
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Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 38
(2) The court may give such weight as it thinks fit to
evidence admitted under subsection (1).
(3) If a representation is to be admitted in evidence,
evidence of the making and content of the affected
5 child's statement is to be given by any person to whom
the affected child made the statement.
(4) In this section --
"representation" includes an express or implied
representation, whether oral or in writing, and a
10 representation inferred from conduct.
53F. Summonsing of children
(1) Despite any other provision of this Act, a child is not to
be summonsed to the hearing of an application
unless --
15 (a) a court makes an order allowing the child to be
summonsed; or
(b) the hearing is to be held in the Children's
Court.
(2) A court is not to make an order under subsection (1)(a)
20 unless the court is satisfied that exceptional
circumstances exist which, in the interests of justice,
justify summonsing the child.
".
38. Section 55 amended and consequential amendment
25 (1) Section 55(3) is amended as follows:
(a) in paragraph (c) by inserting after "section 41" --
" or 43 ";
(b) in paragraph (d) by inserting after "section 63" --
" or 63A ".
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Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 39
(2) After section 55(3) the following subsection is inserted --
"
(3a) A restraining order is taken to have been served if the
person who is bound by the order is present in court
5 when the order is made.
".
(3) Section 55(5)(d) is amended by inserting after "order" --
"
, and a document containing the explanation to
10 be given under section 8(1),
".
(4) After section 10(1) the following subsection is inserted --
"
(1a) If a restraining order is taken to have been served under
15 section 55(3a), the respondent's copy and the
respondent's endorsed copy is not required to be served
under subsection (1)(a) but is to be delivered to the
respondent.
".
20 39. Section 59 amended
Section 59 is amended by inserting after "complete" --
" the ".
40. Heading to Part 6 Division 3 amended
The heading to Part 6 Division 3 is amended by inserting after
25 "order" --
" or police order ".
page 44
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 41
41. Section 61 amended
(1) The penalty provision at the end of section 61(1) is deleted and
the following is inserted instead --
"
5 Penalty: $6 000 or imprisonment for 2 years, or both.
".
(2) After section 61(2) the following subsection is inserted --
"
(2a) A person who is bound by a police order and who
10 breaches that order commits an offence.
Penalty: $6 000 or imprisonment for 2 years, or both.
".
(3) Section 61(3) is amended by inserting after "order" --
" or a police order ".
15 (4) After section 61(3) the following subsections are inserted --
"
(4) It is to be taken to be an aggravating factor for the
purposes of section 7(1) of the Sentencing Act 1995 if,
in committing an offence under this section, a child
20 with whom the offender is in a family and domestic
relationship is exposed to an act of abuse.
(5) For the avoidance of doubt, subsection (4) does not
affect the discretion of a court to decide whether or not
any factor is an aggravating factor for the purposes of
25 any offence.
".
page 45
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 42
42. Section 62 replaced
Section 62 is repealed and the following section is inserted
instead --
"
5 62. Defence
(1) It is a defence to a charge under section 61 for the
person who is bound by the order to satisfy the court
that in carrying out the act that constituted the offence,
the person was --
10 (a) using a primary dispute resolution method, as
defined in section 47 of the Family Court
Act 1997;
(b) instructing, or acting through, a legal
practitioner or a person acting under section 48
15 of the Aboriginal Affairs Planning Authority
Act 1972, or using conciliation, mediation or
another form of consensual dispute resolution
provided by a legal practitioner;
(c) acting in accordance with an action taken by a
20 person or authority under a child welfare law,
within the meaning of section 50B(4); or
(d) acting as the result of such an emergency that
an ordinary person in similar circumstances
would have acted in the same or a similar way.
25 (2) In subsection (1)(b) --
"legal practitioner" has the meaning given in the
Legal Practice Act 2003.
".
page 46
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 43
43. Division 3A inserted in Part 6 and consequential
amendments
(1) After Part 6 Division 3 the following Division is inserted --
"
5 Division 3A -- Police Functions
62A. Investigation of suspected family and domestic
violence
A police officer is to investigate whether an act of
family and domestic violence is being, or has been
10 committed, or whether an act of family and domestic
violence is likely to be committed, if the police officer
reasonably suspects that a person is committing, or has
committed, an act of family and domestic violence
which --
15 (a) is a criminal offence; or
(b) has put the safety of a person at risk.
62B. Entry and search of premises if family and domestic
violence suspected
(1) If a police officer reasonably suspects that a person is
20 committing an act of family and domestic violence, or
that such an act was committed before the officer's
arrival, on any premises, the officer may without a
warrant but with the approval of a senior officer under
section 62D, enter those premises and may remain in
25 those premises for as long as the officer considers
necessary --
(a) to investigate whether or not an act of family
and domestic violence has been committed;
(b) to ensure that, in the officer's opinion, there is
30 no imminent danger of a person committing an
act of family and domestic violence on the
premises; and
page 47
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 43
(c) to give or arrange for such assistance as is
reasonable in the circumstances.
(2) If, after entering premises (under subsection (1) or
otherwise) a police officer reasonably suspects that an
5 act of family and domestic violence is being
committed, or was committed before the officer's
arrival, on the premises the officer without further
authority may --
(a) search the premises to establish whether any
10 person on the premises --
(i) is in need of assistance; or
(ii) is in possession of a weapon;
(b) search --
(i) the premises for a weapon; and
15 (ii) any person on the premises whom the
officer reasonably suspects is in
possession of a weapon;
and
(c) seize any weapon found on the premises, or on
20 a person, that the officer reasonably suspects --
(i) was used to commit an act of family and
domestic violence; or
(ii) may be used to commit an act of family
and domestic violence.
25 (3) A police officer may use such force, and such
assistance, as is necessary and reasonable in the
circumstances in order to perform a function under this
section.
(4) A weapon seized under this section is to be delivered to
30 the Commissioner of Police, and dealt with, in the
prescribed manner.
page 48
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 43
(5) A police officer who seizes a weapon is, where
practicable, to inform the person from whose
possession it is seized of the place to which the weapon
is to be taken.
5 (6) This section does not limit any other power a police
officer may have under this Act, any other written law
or at common law.
62C. Action to be taken by police officer after
investigating suspected family and domestic
10 violence
After an investigation referred to in section 62A, or
after entering or searching premises under section 62B,
a police officer is to make --
(a) an application for a restraining order under
15 section 18(1)(a) or 25(1)(b);
(b) a police order; or
(c) a written record of the reasons why he or she
did not take either of the actions set out in
paragraph (a) or (b).
20 62D. Approval of senior officer
(1) An application for the approval of a senior officer
referred to in section 62B(1) must be made to another
officer who is a senior officer and who is not involved
in the proposed entry.
25 (2) An application to a senior officer may be made, and the
approval may be given, orally in person or by remote
communication.
page 49
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 43
(3) A police officer making the application for approval to
a senior officer must --
(a) give the address, or describe the premises, to
which it relates, and, if known, the person to
5 whom it relates; and
(b) state the grounds on which the police officer
suspects that --
(i) a person is on the premises; and
(ii) the person has committed, or is
10 committing, an act of family and
domestic violence against another
person.
(4) On an application for the approval of a senior officer
the senior officer may give approval for the entry of the
15 premises without a warrant at any time.
(5) A senior officer must not give approval for the entry
unless satisfied that there are reasonable grounds for
the police officer to suspect that a person is committing
an act of family and domestic violence, or that such an
20 act was committed before the officer's arrival, on the
premises.
(6) As soon as practicable after giving approval a senior
officer must make a record of --
(a) the date and time when it was given; and
25 (b) the reasons for giving it.
(7) The approval of a senior officer referred to in
section 62B(1) has effect only for a period of 24 hours
after it is given by the officer.
(8) In this section --
30 "remote communication" means any way of
communicating at a distance including by
telephone, fax, email and radio;
page 50
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 43
"senior officer" means a police officer who --
(a) is senior in rank to the officer making the
application; and
(b) is of or above the rank of inspector.
5 62E. Seizure of firearms
(1) If a person who is bound by a violence restraining
order does not give up possession of a firearm or
firearms licence in accordance with section 14(2), a
police officer may, without a warrant, enter a place
10 where --
(a) a firearm that is, or is reasonably suspected to
be, in the possession of the person; or
(b) a firearms licence held by the person,
is reasonably suspected to be, and search for and seize
15 the firearm or firearms licence.
(2) A firearm or firearms licence seized under
subsection (1) is to be delivered to the Commissioner
of Police, and dealt with, in the prescribed manner.
62F. Detention of respondent during telephone hearing
20 or while police order is being made
If --
(a) a telephone application has been, or is about to
be, made; or
(b) a police order is being made,
page 51
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 44
a police officer may, without a warrant and in order to
facilitate service of any resulting order on the person
against whom the order is being, or is to be, sought or
made --
5 (c)require that person to remain in a place designated
by the police officer while --
(i) the telephone application is made and
heard; or
(ii) the police order is made;
10 and
(d) if the person does not, or the police officer
reasonably believes the person will not, remain
in the place, arrest and detain the person in
custody for up to 2 hours.
15 62G. Police officer may conduct hearing for applicant
A police officer is authorised, at any stage of a hearing
of an application for a restraining order made by
another person, to conduct proceedings on behalf of
that person, if the person so requests.
20 ".
(2) Section 15 is repealed.
(3) Section 22 is repealed.
(4) Section 36(6) is amended by deleting "15" and inserting
instead --
25 " 62E ".
44. Section 63 amended
Section 63(4)(a) is amended by deleting "Section 11" and
inserting instead --
" section 11A, 11B ".
page 52
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 45
45. Section 63A, 63B and 63C inserted
After section 63 the following sections are inserted --
"
63A. Restraining order to be made if certain violent
5 personal offences committed
(1) A court convicting a person for a violent personal
offence, within the meaning of subsection (5), is --
(a) to make a violence restraining order against that
person for the protection of a victim of the
10 offence unless there is such an order in force
already for the period of the life of the person
who committed the offence; or
(b) where a violence restraining order is in force
for the protection of a victim of the offence, to
15 vary that order by extending the duration of the
order.
(2) An order made, or varied, under subsection (1) is to
specify that the order is to remain in force for the
period of the life of the person who committed the
20 offence.
(3) A restraining order made under this section is a final
order.
(4) A court must not make an order under this section if a
victim of the offence for whose benefit the court
25 proposes to make a violence restraining order objects
to that order being made.
(5) In subsection (1) --
"violent personal offence" means an offence against
section 283, 297, 325, 326, 327 or 328 of The
30 Criminal Code.
page 53
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 45
63B. Circumstances to be taken into account when
sentencing for certain offences
(1) Where a person has committed a violent personal
offence, within the meaning of subsection (3), and --
5 (a) is in a family and domestic relationship with a
victim of the offence;
(b) a child was present when the offence was
committed; or
(c) the conduct of the offender in committing the
10 offence constituted a breach of a restraining
order,
the court sentencing the offender is to determine the
seriousness of the offence taking that circumstance into
account.
15 (2) For the avoidance of doubt, subsection (1) does not
affect the discretion of a court to decide whether or not
a circumstance set out in that subsection is a
circumstance to take into account in sentencing an
offender for any other offence.
20 (3) In this section --
"violent personal offence" means --
(a) an offence mentioned in section 277 (other
than infanticide); or
(b) an offence against section 283, 332, 333,
25 338A, 338B, 338C or 338E,
of The Criminal Code.
63C. Criminal and civil liability not affected by
restraining orders
(1) A court may make or vary a restraining order even
30 though the respondent has been charged with, or
convicted of, an offence arising out of the same
page 54
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 46
conduct as that out of which the application for the
order arose.
(2) The making or varying of a restraining order does not,
except as provided by this Act, affect the civil or
5 criminal liability of a person bound by the order in
respect of the same conduct as that out of which the
application for the order arose.
".
46. Section 67 replaced
10 Section 67 is repealed and the following section is inserted
instead --
"
67. Adjournments
(1) In addition to the specific provisions of this Act
15 regarding adjournments, a court may also grant an
adjournment --
(a) at a final order hearing, if the court is satisfied
that an injustice would result if an adjournment
were not granted; or
20 (b) at any other hearing, if the court is satisfied that
there is good reason to do so,
when, and for the period of time, the court considers
appropriate.
(2) If a court grants an adjournment under subsection (1),
25 it is to make a written record of the reasons why the
adjournment was granted.
(3) If an adjournment is granted, whether under
subsection (1) or under another provision, the clerk is
to notify each party who is permitted to attend the
30 hearing who was not present when the adjournment
was granted.
".
page 55
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 47
47. Section 69 amended
(1) Section 69(1) is amended by deleting "subsection (2)" and
inserting instead --
" subsections (2) and (3) ".
5 (2) Section 69(2) is repealed and the following subsections are
inserted instead --
"
(2) A court is not to order an applicant for a restraining
order to pay costs to the respondent unless it considers
10 the application was frivolous or vexatious.
(3) A court is not to order costs to be paid by an applicant
if the applicant is a police officer who --
(a) makes an application under this Act for a
restraining order, represents another officer at a
15 hearing or acts under section 62G; and
(b) acts in good faith and in the normal course of
duty in making the application, or appearing at
the hearing.
".
20 48. Section 70 replaced by sections 70 and 70A
Section 70 is repealed and the following sections are inserted
instead --
"
70. Information on identity of certain person restricted
25 (1) Subject to subsection (3), any information in the
custody of a court that would, or would be likely to,
reveal or lead to the revelation of the whereabouts
of --
(a) a party to proceedings under this Act; or
30 (b) any person who gives evidence in proceedings
under this Act,
page 56
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 48
is not to be disclosed by the court or a clerk of the
court --
(c) to a party to the proceedings; or
(d) in such a manner that the information will, or
5 may, be revealed to a party to the proceedings.
(2) Subject to subsection (3), a person must not publish in
a newspaper or periodical publication or by radio
broadcast, television or other electronic means, or
otherwise disseminate to the public or to a section of
10 the public by any means any information that would, or
would be likely to, reveal or lead to the revelation of
the whereabouts of --
(a) a party to proceedings under this Act; or
(b) any person who gives evidence in proceedings
15 under this Act.
Penalty: $6 000 or imprisonment for 18 months.
(3) This section does not apply if the court is satisfied --
(a) that the person to whom the information is to
be, or may be, disclosed is already aware of the
20 whereabouts of the person to whom the
information applies; or
(b) that the person who would otherwise be
protected by this section --
(i) understands the effect of this section;
25 and
(ii) has agreed that this section is not to
apply,
and specifies in the restraining order that this section
does not apply.
30 (4) In this section "under this Act" includes proceedings in
which the existence of a restraining order is a material
fact in the proceedings.
page 57
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 48
70A. Exchange of information
(1) In this section --
"interested party" means --
(a) the Commissioner of Police;
5 (b) the Chief Executive Officer of the
department of the Public Service principally
assisting the Minister in the administration of
this Act; or
(c) the CEO (child welfare);
10 "prescribed information" means information of a
description or class prescribed about a person
protected by a violence restraining order, or a child
affected by such an order.
(2) An interested party may provide to another interested
15 party prescribed information if the parties agree that
the provision of such information is necessary to
ensure the safety of a person protected by a violence
restraining order, or the wellbeing of a child affected
by such an order.
20 (3) Any information provided under subsection (2) must be
provided in confidence.
(4) If information is provided under subsection (2) in
confidence and good faith --
(a) no civil or criminal liability is incurred in
25 respect of the provision of the information;
(b) the provision of the information is not to be
regarded as a breach of section 70 or of any
duty of confidentiality or secrecy imposed by
any written or other law; and
30 (c) the provision of the information is not to be
regarded as a breach of professional ethics or
standards or as unprofessional conduct.
page 58
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 49
(5) Information provided under subsection (2) must not be
used by the party to whom the information is provided
for any purpose other than that specified in
subsection (2).
5 ".
49. Section 73 amended
(1) Section 73(2) is amended as follows:
(a) after paragraph (e) by inserting --
" and ";
10 (b) after paragraph (f) by deleting "; and" and inserting a
full stop;
(c) by deleting paragraph (g).
(2) After section 73(2) the following subsection is inserted --
"
15 (3) The forms prescribed for a restraining order and a
telephone order are to contain a brief summary of the
effect of section 44B.
".
50. Section 74 amended
20 Section 74 is amended in the definition of "interstate order" by
deleting "law prescribed for the purposes of this definition" and
inserting instead --
" corresponding law of that State or Territory ".
51. Section 75 amended
25 (1) Section 75(1)(a) is deleted and the following paragraph is
inserted instead --
"
(a) the person named in the order for whose benefit
the order is made;
30 ".
page 59
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 52
(2) Section 75(1a)(a) is amended by deleting "protected by the
order" and inserting instead --
" named in the order for whose benefit the order is made ".
(3) Section 75(1a)(b) is amended by deleting "protected by the
5 order" and inserting instead --
" named in the order for whose benefit the order is made ".
52. Section 79B amended
(1) Section 79B(1)(a) is amended by deleting "protected by the
order" and inserting instead --
10 " named in the order for whose benefit the order is made ".
(2) Section 79B(1a)(a) is amended by deleting "protected by the
order" and inserting instead --
" named in the order for whose benefit the order is made ".
(3) Section 79B(1a)(b) is amended by deleting "protected by the
15 order" and inserting instead --
" named in the order for whose benefit the order is made ".
53. Part 8 repealed
Part 8 is repealed.
54. Various references to "applicant" amended
20 Each provision referred to in the Table to this section is
amended by deleting "applicant" in each place where it occurs
and inserting instead --
" person seeking to be protected ".
page 60
Acts Amendment (Family and Domestic Violence) Bill 2004
Restraining Orders Act 1997 amended Part 2
s. 55
Table
s. 12(1)(d) and (g) s. 35(1)(a)(i) and (ii), (c) and (f)
s. 13(2)(a), (c), (d), (e) s. 36(1)(a) and (b), (2)(a), (c)
and (d)
s. 34(a)(i) and (ii)
55. References to "person to be protected" amended
Each provision referred to in the Table to this section is
amended by deleting "person to be protected" in each place
5 where it occurs and inserting instead --
" person seeking to be protected ".
Table
s. 12(1)(i) s. 35(1)(h)
s. 14(6) s. 38(1)(a), (2)(a) and (b) and (3)
s. 18(1)(a) and (b) and (2)(a) and s. 63(3a)(c) and (d)
(b)
s. 25(1)(a) and (2)(a) and (b) s. 66(3)(a)
56. Notes about applicants under various sections removed
The notes under sections 11, 12, 13, 34, 35 and 36 are removed.
10 57. Further amendments related to the Children and Community
Services Act 2004
(1) The day fixed under section 2 of this Act for the commencement
of this section cannot be before the commencement of --
(a) sections 5(1) and (7), 18 and 35 of this Act; and
15 (b) clause 23 of Schedule 2 to the Children and Community
Services Act 2004.
page 61
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 2 Restraining Orders Act 1997 amended
s. 57
(2) Section 3 is amended in the definition of "CEO (child welfare)"
by deleting "Director-General within the meaning of the Child
Welfare Act 1947;" and inserting instead --
"
5 CEO within the meaning of the Children and
Community Services Act 2004;
".
(3) Section 3 is amended by deleting the full stop after the
definition of "violence restraining order" and inserting a
10 semicolon instead.
(4) Section 3 is amended by inserting after the definition of
"violence restraining order" the following definition --
"
"wellbeing" has the same meaning as in the Children
15 and Community Services Act 2004.
".
(5) Each provision listed in the Table to this subsection is amended
by deleting "welfare" and inserting instead --
" wellbeing ".
20 Table
s. 12(1)(c) s. 35(2)(b)
s. 30B(d) s. 50D(1) (in the first place where it occurs)
s. 35(1)(b) s. 50D(2)(b) (in the second place where it
occurs)
".
page 62
Acts Amendment (Family and Domestic Violence) Bill 2004
The Bail Act 1982 amended Part 3
s. 58
Part 3 -- The Bail Act 1982 amended
58. Bail Act 1982 amended
The amendments in this Part are to the Bail Act 1982*.
[* Reprinted as at 27 August 1999.
5 For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 28 and
Acts Nos. 50 of 2003 and 4 of 2004.]
59. Section 16A amended
Section 16A(3) is amended by inserting after "arrested" --
10 " in an urban area ".
60. Schedule 1 amended
Schedule 1 Part C, clause 3B(6) is amended in paragraph (b) of
the definition of "protective condition or order" by inserting
after "order" --
15 " or a police order ".
61. Schedule 2 amended
Schedule 2 item 2b is amended by inserting after the item
commencing "s. 61(1)" the following item --
"
s. 61(2a) Breach of a police order
20 ".
page 63
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 4 The Criminal Code amended
s. 62
Part 4 -- The Criminal Code amended
62. The Criminal Code amended
The amendments in this Part are to The Criminal Code*.
[* Reprint 10 as at 7 February 2003 (see the Schedule to the
5 Criminal Code Act 1913 appearing as Appendix B to the
Criminal Code Act Compilation Act 1913).
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 95 and
Acts Nos. 50 of 2003 and 4 of 2004.]
10 63. Heading to Chapter XXVI amended
The heading to Part V Chapter XXVI is amended by deleting
"and excuse" and inserting instead --
" , excuse and circumstances of aggravation ".
64. Section 221 inserted
15 Before section 222 in Chapter XXVI the following section is
inserted --
"
221. Circumstances of aggravation for offences in
this Part
20 (1) In this Part --
"circumstances of aggravation" means circumstances
in which --
(a) the offender is in a family and domestic
relationship with the victim of the offence;
25 (b) a child was present when the offence was
committed;
(c) the conduct of the offender in committing
the offence constituted a breach of an order
made or registered under the Restraining
page 64
Acts Amendment (Family and Domestic Violence) Bill 2004
The Criminal Code amended Part 4
s. 65
Orders Act 1997 or to which that Act
applies; or
(d) the victim is of or over the age of 60 years.
(2) In this section --
5 "family and domestic relationship" has the same
meaning as it has in section 4 of the Restraining
Orders Act 1997.
".
65. Section 297 amended
10 Section 297 is amended by deleting "If the person harmed is of
or over the age of 60 years" and inserting instead --
"
If the offence is committed in circumstances of
aggravation
15 ".
66. Section 301 amended
Section 301 is amended by deleting "if the person wounded is of
or over the age of 60 years" and inserting instead --
"
20 if the offence is committed in circumstances of
aggravation
".
67. Section 313 amended
Section 313(1) is amended by deleting "if the person assaulted
25 is of or over the age of 60 years" and inserting instead --
"
if the offence is committed in circumstances of
aggravation
".
page 65
Acts Amendment (Family and Domestic Violence) Bill 2004
Part 4 The Criminal Code amended
s. 68
68. Section 317 amended
Section 317(1) is amended by deleting "if the person assaulted
is of or over the age of 60 years" and inserting instead --
"
5 if the offence is committed in circumstances of
aggravation
".
69. Section 317A amended
Section 317A is amended by deleting "if the person assaulted is
10 of or over the age of 60 years" and inserting instead --
"
if the offence is committed in circumstances of
aggravation
".
15 70. Section 319 amended
Section 319(1) is amended in the definition of "circumstances of
aggravation" as follows:
(a) by deleting "means" and inserting instead --
"
20 , without limiting the definition of that expression
in section 221, includes
";
(b) by deleting paragraph (b) and inserting the following
paragraph instead --
25 "
(b) the victim is of or over the age of 13 years
and under the age of 16 years.
".
page 66
Acts Amendment (Family and Domestic Violence) Bill 2004
The Criminal Code amended Part 4
s. 71
71. Section 338D amended
Section 338D(1) is amended in the definition of "circumstances
of aggravation" as follows:
(a) by deleting "means" and inserting instead --
5 "
, without limiting the definition of that expression
in section 221, includes
";
(b) by deleting paragraph (b) and inserting instead --
10 "
(b) the conduct of the offender in committing
the offence constituted a breach of a
condition on which bail has been granted to
the offender;
15 ".
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