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