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This is a Bill, not an Act. For current law, see the Acts databases.


RESTRAINING ORDERS AMENDMENT BILL 1998

                               Western Australia



                          LEGISLATIVE COUNCIL




     Restraining Orders Amendment Bill 1998
                                   A Bill for


    An Act to amend the Restraining Orders Act 1997.



    The Parliament of Western Australia enacts as follows:


    1.      Short title
            This Act may be cited as the Restraining Orders Amendment
5           Act 1998.




                                                                  page 1



                                   26 -- 1
     Restraining Orders Amendment Bill 1998


     s. 2




     2.       Commencement
              This Act comes into operation on the day on which it receives
              the Royal Assent.

     3.       The Act amended
 5            The amendments in this Act are to the Restraining Orders
              Act 1997*.
              [* Act No. 19 of 1997.
                 For subsequent amendments see 1997 Index to Legislation of
                 Western Australia, Table 1, p. 199 and Acts Nos. 14 of 1997
10               and 10 of 1998.]

     4.       Section 3 amended
              Section 3 is amended by inserting the following definitions in
              their appropriate alphabetical positions --
              "
15                 "corresponding law", in relation to a foreign country,
                       means a law of the country that empowers a court
                       of the country to make orders (however described)
                       having an effect that is the same as or similar to
                       the effect of restraining orders made under this
20                     Act;
                   "foreign restraining order" means an order (however
                       described) made by a court of a foreign country
                       under a corresponding law of the country;
                   "registered", in relation to a foreign restraining order,
25                     means registered under section 79C;
                                                                               ".




     page 2
                                        Restraining Orders Amendment Bill 1998


                                                                                 s. 5



     5.         Section 77 amended
                After section 77(1) the following subsection is inserted --
          "
              (1a)    Without limiting subsection (1), for the purposes of
 5                    applying Part 5 to an interstate order --
                        (a) a reference to varying a final order is to be read
                             as a reference to making an order varying the
                             operation in this State of the interstate order;
                             and
10                      (b) a reference to cancelling a final order is to be
                             read as a reference to making an order
                             cancelling the registration of the interstate
                             order.
                                                                                   ".

15   6.         Section 79 replaced
                Section 79 is repealed and the following section is inserted
                instead --
     "
          79.         Variation or cancellation in this State
20                    If an order is made under Part 5 varying the operation
                      in this State, or cancelling the registration, of an
                      interstate order, the clerk of the court that made the
                      order of variation or cancellation must --
                        (a) notify the applicant for registration of the
25                             original order, unless the clerk knows that the
                               applicant is already aware of the variation or
                               cancellation;




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     Restraining Orders Amendment Bill 1998


     s. 7



                      (b)   notify the Commissioner of Police and give the
                            Commissioner a copy of the order of variation
                            or cancellation; and
                      (c)   alter the registration accordingly.
 5                                                                              ".

     7.       New Part inserted
              After Part 7 the following Part is inserted --
     "
                    Part 7A -- Foreign restraining orders
10          79A.     Recognition of foreign restraining orders
                     A foreign restraining order that is in force under a
                     corresponding law of New Zealand or a prescribed
                     country may be registered and enforced under this Part.

            79B.     Applying for registration of foreign restraining
15                   orders
              (1)    An application for registration of a foreign restraining
                     order may be made --
                       (a) by a person protected by the order;
                       (b) if the protected person is a child, by a parent or
20                          guardian of the child on behalf of the child;
                       (c) if the protected person is under the
                            guardianship of a guardian (however described)
                            appointed under a law of the foreign country,
                            by the guardian on behalf of the protected
25                          person; or
                       (d) by a police officer on behalf of the protected
                            person.


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                               Restraining Orders Amendment Bill 1998


                                                                        s. 7



       (2)   The application is to be made to a court of petty
             sessions in the form prescribed for the purposes of
             section 75(2).
       (3)   An application need not be served on the person who is
 5           bound by the order.

     79C.    Registration of foreign restraining orders
       (1)   When a person applies for registration of a foreign
             restraining order, the clerk of the court is to register the
             order.
10     (2)   The clerk must give notice of the registration --
              (a) to the applicant; and
              (b) where practicable, to the court that made the
                    order.
       (3)   The clerk must also give notice of the registration of
15           the order, and a copy of the order, to the Commissioner
             of Police.
       (4)   The clerk is not to give notice of the registration to the
             person who is bound by the order unless the applicant
             has made a written request for notice to be given to the
20           person.

     79D.    Effect of registration
       (1)   A registered foreign restraining order operates in this
             State, and this Act applies to it, as if it were a violence
             restraining order that is a final order and that was
25           served in accordance with this Act on the day on which
             it was registered.




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     Restraining Orders Amendment Bill 1998


     s. 7



              (2)   Without limiting subsection (1), for the purposes of
                    applying Part 5 to a registered foreign restraining
                    order --
                      (a) a reference to varying a final order is to be read
 5                         as a reference to making an order varying the
                           operation in this State of the registered foreign
                           restraining order; and
                      (b) a reference to cancelling a final order is to be
                           read as a reference to making an order
10                         cancelling the registration of the foreign
                           restraining order.
              (3)   The order operates as a final order even though an
                    appeal against it may be pending, or it may still be
                    subject to appeal, in the courts of the foreign country.
15            (4)   In proceedings for a breach of the order, proof is not
                    required --
                      (a) that the order was made by the foreign court; or
                      (b) that the order was served on the person who is
                            bound by it.
20            (5)   It is a defence to a charge of breaching the order for the
                    person who is bound by the order to satisfy the court
                    that --
                       (a) the order had been varied under the
                             corresponding law of the foreign country so
25                           that the behaviour that is alleged to constitute
                             the breach did not amount to a breach of the
                             order as in force in the foreign country at the
                             material time; or




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                               Restraining Orders Amendment Bill 1998


                                                                         s. 7



              (b)    the order had been cancelled under the
                     corresponding law of the foreign country and
                     was not in force in that country at the material
                     time.

 5   79E.    Variation or cancellation in a foreign country
       (1)   If the clerk of the court that registered a foreign
             restraining order has reasonable grounds for believing
             that an order varying the restraining order is in force
             under the corresponding law of the foreign country, the
10           clerk is to register the variation.
       (2)   The variation takes effect on the day on which it is
             registered.
       (3)   If a registered foreign restraining order is cancelled by
             a court of the foreign country, the registration of the
15           order is cancelled on the day on which the court of
             registration becomes aware of the cancellation.
       (4)   If a variation of a registered foreign restraining order is
             registered, or the order is cancelled, the clerk of the
             court of registration must --
20             (a) notify the applicant for registration of the
                      original order, unless the clerk knows that the
                      applicant is already aware of the variation or
                      cancellation; and
               (b) notify the Commissioner of Police and give the
25                    Commissioner a copy of the order of variation
                      or cancellation if one is available.




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     Restraining Orders Amendment Bill 1998


     s. 7



            79F.   Variation or cancellation in this State
                   If an order is made under Part 5 varying the operation
                   in this State, or cancelling the registration, of a
                   registered foreign restraining order, the clerk of the
 5                 court that made the order of variation or cancellation
                   must --
                     (a) notify the applicant for registration of the
                            original order, unless the clerk knows that the
                            applicant is already aware of the variation or
10                          cancellation;
                     (b) notify the Commissioner of Police and give the
                            Commissioner a copy of the order of variation
                            or cancellation; and
                     (c) alter the registration accordingly.
15                                                                            ".




 


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