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


RESTRAINING ORDERS AMENDMENT BILL 2011

                    Western Australia


Restraining Orders Amendment Bill 2011

                       CONTENTS


      Part 1 -- Preliminary
1.    Short title                                                2
2.    Commencement                                               2
      Part 2 -- Restraining Orders Act 1997
           amended
3.    Act amended                                                3
4.    Section 12 amended                                         3
5.    Section 13 amended                                         3
6.    Section 16 amended                                         3
7.    Section 25 amended                                         4
8.    Section 30D replaced                                       4
      30D.     Police orders against children               4
9.    Section 30F replaced                                       4
      30F.     Duration of police orders                    4
10.   Section 30G deleted                                        5
11.   Section 31A inserted                                       5
      31A.     Term used: respondent                        5
12.   Section 32 amended                                         5
13.   Section 45 amended                                         7
14.   Section 53G inserted                                       7
      53G.     Arrangements for care and wellbeing of
               children bound by restraining orders         7
15.   Sections 61A and 61B inserted                              8
      61A.     Penalty for repeated breach of restraining
               order                                        8
      61B.     Protected person aiding breach of a
               restraining order or police order            9




                         211--1                                  page i
Restraining Orders Amendment Bill 2011



Contents



             Part 3 -- Criminal Investigation
                  Act 2006 amended
      16.    Act amended                       11
      17.    Section 128 amended               11




page ii
                           Western Australia


                     LEGISLATIVE ASSEMBLY



     Restraining Orders Amendment Bill 2011


                               A Bill for


An Act to amend the Restraining Orders Act 1997 and to make a
consequential amendment to the Criminal Investigation Act 2006.



The Parliament of Western Australia enacts as follows:




                                                             page 1
    Restraining Orders Amendment Bill 2011
    Part 1         Preliminary

    s. 1



1                          Part 1 -- Preliminary
2   1.       Short title
3            This is the Restraining Orders Amendment Act 2011.

4   2.       Commencement
5            This Act comes into operation as follows --
6             (a) sections 1 and 2 -- on the day on which this Act
7                   receives the Royal Assent;
8             (b) the rest of the Act -- on a day fixed by proclamation,
9                   and different days may be fixed for different provisions.




    page 2
                                     Restraining Orders Amendment Bill 2011
                         Restraining Orders Act 1997 amended         Part 2

                                                                               s. 3



1         Part 2 -- Restraining Orders Act 1997 amended
2    3.     Act amended
3           This Part amends the Restraining Orders Act 1997.

4    4.     Section 12 amended
5           After section 12(4) insert:
6

7           (5)   The information is to be provided in the form of a
8                 certificate signed by a police officer of or above the
9                 rank of inspector.
10          (6)   The certificate is prima facie evidence of the matters
11                specified in it, without proof of the signature of the
12                person purporting to have signed it or proof that the
13                purported signatory was a police officer of or above the
14                rank of inspector.
15


16   5.     Section 13 amended
17          After section 13(5) insert:
18

19          (6)   A violence restraining order may inform the respondent
20                that certain behaviour and activities are unlawful.
21


22   6.     Section 16 amended
23          After section 16(2) insert:
24
25         (3A)   Any other interim order, or a final order, lapses if it is
26                not served on the respondent within 2 years, or any
27                shorter period specified in the order, of the order being
28                made.
29




                                                                           page 3
     Restraining Orders Amendment Bill 2011
     Part 2         Restraining Orders Act 1997 amended

     s. 7



1    7.       Section 25 amended
2             In section 25(3)(a) after "respondent" insert:
3

4             or person seeking to be protected
5


6    8.       Section 30D replaced
7             Delete section 30D and insert:
8


9           30D.    Police orders against children
10            (1)   A police order cannot impose restraints on a child
11                  unless the child is in a family and domestic relationship
12                  with the person for whose benefit the order is made.
13            (2)   A police officer must not make a police order against a
14                  child that might affect the care and wellbeing of the
15                  child unless the police officer is satisfied that
16                  appropriate arrangements have been made for the care
17                  and wellbeing of the child.
18


19   9.       Section 30F replaced
20            Delete section 30F and insert:
21


22          30F.    Duration of police orders
23            (1)   A police order --
24                   (a) remains in force for 72 hours (or any shorter
25                         period specified in the order in accordance with
26                         subsection (2)) after it has been served on the
27                         person to be bound by it; and




     page 4
                                       Restraining Orders Amendment Bill 2011
                           Restraining Orders Act 1997 amended         Part 2

                                                                             s. 10



1                    (b)   lapses if it is not served on the person to be
2                          bound by it within 24 hours of the order being
3                          made.
4            (2)   A period shorter than 72 hours may be specified in the
5                  police order if, in the opinion of the police officer who
6                  makes the order, that shorter period would be sufficient
7                  for an application to be made to a court under
8                  Division 3.
9


10   10.     Section 30G deleted
11           Delete section 30G.

12   11.     Section 31A inserted
13           At the beginning of Part 2 Division 4 insert:
14


15         31A.    Term used: respondent
16                 In this Division --
17                 respondent, in respect of an interim order or final
18                 order, means the person bound by the order.
19


20   12.     Section 32 amended
21           After section 32(4) insert:
22

23           (5)   Where an interim order (the earlier order) becomes a
24                 final order under subsection (2), the respondent may
25                 within 21 days of being notified under subsection (4),
26                 or such further period as the court may allow at a
27                 hearing fixed under subsection (6), apply to the court,
28                 in the prescribed form setting out the grounds of the
29                 application, to have that final order set aside.



                                                                         page 5
     Restraining Orders Amendment Bill 2011
     Part 2         Restraining Orders Act 1997 amended

     s. 12



1             (6)   On receiving an application under subsection (5) the
2                   registrar is to fix a hearing, to be held in the absence of
3                   the other party to the proceedings, at which, subject to
4                   subsection (7), the court --
5                     (a) where the application was made out of time, is
6                           to grant leave for the person to continue the
7                           application out of time if satisfied that there
8                           was a reasonable excuse for not commencing
9                           the application within the time allowed; and
10                    (b) after taking into account the grounds of the
11                          application, is to --
12                             (i) adjourn the hearing of the matter to
13                                    allow the other party to oppose the
14                                    application if the court is satisfied that
15                                    the respondent may have had a
16                                    reasonable cause not to return the
17                                    respondent's endorsement copy of the
18                                    earlier order in accordance with
19                                    section 31; or
20                            (ii) dismiss the application.
21            (7)   If the respondent does not attend a hearing fixed under
22                  subsection (6), the court, if it is satisfied that the
23                  respondent was notified of the hearing, is to dismiss the
24                  application.
25            (8)   If the court adjourns the hearing of the matter under
26                  subsection (6)(b)(i) the registrar is to fix a hearing and
27                  summons the other party to the hearing.
28            (9)   At a hearing fixed under subsection (8), where the
29                  other party is present, or if the other party is not present
30                  the court is satisfied the other party was served with the
31                  summons, the court is to hear the matter and --
32                    (a) if satisfied that the respondent had reasonable
33                          cause not to return the respondent's
34                          endorsement copy of the earlier order in

     page 6
                                      Restraining Orders Amendment Bill 2011
                          Restraining Orders Act 1997 amended         Part 2

                                                                             s. 13



1                          accordance with section 31, is to set aside the
2                          final order; or
3                   (b)    is to dismiss the application.
4           (10)   Where, under subsection (9)(a), the court sets aside the
5                  final order --
6                    (a) the court is to make an interim order in the
7                          same terms as the earlier order, unless any new
8                          ground or matter is raised at the hearing fixed
9                          under subsection (6) or (8); and
10                   (b) section 33 applies as if the respondent had --
11                           (i) returned the respondent's endorsement
12                                copy of the interim order in accordance
13                                with section 31; and
14                          (ii) indicated on it that the respondent
15                                objected to the interim order becoming
16                                final.
17


18   13.     Section 45 amended
19           In section 45(6) delete "given a copy of the application." and
20           insert:
21

22           served with a summons under section 47.
23


24   14.     Section 53G inserted
25           At the end of Part 6 Division 1 insert:
26


27         53G.    Arrangements for care and wellbeing of children
28                 bound by restraining orders
29           (1)   A court is not to make a restraining order against a
30                 child that might affect the care and wellbeing of the


                                                                           page 7
     Restraining Orders Amendment Bill 2011
     Part 2         Restraining Orders Act 1997 amended

     s. 15



1                    child unless the court is satisfied that appropriate
2                    arrangements have been made for the care and
3                    wellbeing of the child.
4              (2)   If a court makes a restraining order of the kind referred
5                    to in subsection (1), the court may require the parties to
6                    the proceedings to appear before the court on a regular
7                    basis during the period that the order is in force in
8                    order to report on those arrangements.
9


10   15.       Sections 61A and 61B inserted
11             After section 61 insert:
12


13           61A.    Penalty for repeated breach of restraining order
14             (1)   In this section --
15                   conviction --
16                     (a) includes a finding or admission of guilt despite
17                            a conviction not being recorded under the
18                            Young Offenders Act 1994 section 55; and
19                     (b) does not include a conviction that has been set
20                            aside or quashed.
21             (2)   This section applies if a person --
22                    (a) is convicted of an offence under section 61(1)
23                          or (2a) (the relevant offence); and
24                    (b) has committed, and been convicted of, at least
25                          2 offences under section 61(1) or (2a) within
26                          the period of 2 years before the person's
27                          conviction of the relevant offence.
28             (3)   This section applies despite the Sentencing Act 1995
29                   and the Young Offenders Act 1994.




     page 8
                                Restraining Orders Amendment Bill 2011
                    Restraining Orders Act 1997 amended         Part 2

                                                                        s. 15



1      (4)   Except as provided in subsection (6), if the person is a
2            child a penalty must be imposed on the person for the
3            relevant offence that is or includes --
4              (a) imprisonment under the Young Offenders
5                    Act 1994 section 118(1)(a); or
6              (b) detention under the Young Offenders Act 1994
7                    section 118(1)(b).
8      (5)   Except as provided in subsection (6), if the person is
9            not a child a penalty must be imposed on the person for
10           the relevant offence that is or includes imprisonment.
11     (6)   A court may decide not to impose a penalty on the
12           person that is or includes imprisonment or detention, as
13           the case requires, if --
14             (a) imprisonment or detention would be clearly
15                   unjust given the circumstances of the offence
16                   and the person; and
17             (b) the person is unlikely to be a threat to the safety
18                   of a person protected or the community
19                   generally.
20     (7)   A court that does not, because of subsection (6),
21           impose a penalty on a person that is or includes
22           imprisonment or detention must give written reasons
23           why imprisonment or detention was not imposed.

24   61B.    Protected person aiding breach of a restraining
25           order or police order
26     (1)   In this section --
27           aid, in relation to the breach of an order, means --
28             (a) do or omit to do any act for the purpose of
29                    enabling or aiding a person bound by the order
30                    to commit the breach; or
31             (b) aid a person bound by the order to commit the
32                    breach; or

                                                                   page 9
     Restraining Orders Amendment Bill 2011
     Part 2         Restraining Orders Act 1997 amended

     s. 15



1                     (c)    counsel or procure a person bound by the order
2                            to commit the breach;
3                    bound person, in relation to an order, means the person
4                    bound by the order;
5                    order means a restraining order or a police order;
6                    protected person, in relation to an order, means the
7                    person protected by the order.
8              (2)   In the sentencing of a bound person for an offence
9                    under section 61, any aiding of the breach of the order
10                   by the protected person is not a mitigating factor for
11                   the purposes of the Sentencing Act 1995 section 8(1).
12             (3)   Despite The Criminal Code section 7, the protected
13                   person does not commit an offence under section 61 by
14                   aiding the breach of the order.
15             (4)   However in the case of a breach of a restraining order,
16                   the court sentencing the bound person may, if it is
17                   satisfied that the protected person aided the breach, on
18                   its own initiative exercise the powers in
19                   section 49(1)(b) and (c) and (1a) as if it were hearing
20                   an application under section 45, and section 49(1b)
21                   to (5) apply with any necessary modifications.
22




     page 10
                                        Restraining Orders Amendment Bill 2011
                          Criminal Investigation Act 2006 amended       Part 3

                                                                             s. 16



1          Part 3 -- Criminal Investigation Act 2006 amended
2    16.       Act amended
3              This Part amends the Criminal Investigation Act 2006.

4    17.       Section 128 amended
5              In section 128(1) delete the definition of serious offence and
6              insert:
7

8                    serious offence means an offence --
9                      (a) the statutory penalty for which is or includes
10                          imprisonment for 5 years or more or life; or
11                     (b) under the Restraining Orders Act 1997
12                          section 61(1) or (2a); or
13                     (c) that involves an act of family and domestic
14                          violence as referred to in the definition of act of
15                          family and domestic violence paragraphs (a) to
16                          (c) and (f) in the Restraining Orders Act 1997
17                          section 6(1).
18




 


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