2007

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR JUSTICE AND ATTORNEY-GENERAL

domestic and family violence Bill 2007 
Serial No. 120

EXPLANATORY STATEMENT

GENERAL OUTLINE

The Domestic and Family Violence Bill 2007:

·	provides for the making and variation of domestic violence orders by police officers and by the Court of Summary Jurisdiction ;

·	provides for the confirmation of domestic violence orders by the Court of Summary Jurisdiction;

·	provides for the recognition in the Northern Territory of domestic violence orders made elsewhere in Australia and in New Zealand;

·	provides for the giving of evidence by vulnerable witnesses;

·	provides for the protection from liability for health practitioners who report domestic violence;  

·	amends the Justices Act so as to provide for personal violence restraining orders;

·	repeals the Domestic Violence Act and makes transitional arrangements arising from that repeal;

·	makes transitional arrangements concerning applications pending under the Domestic Violence Act; and

·	makes consequential amendments to the Firearms Act, Justices Act and other legislation.

The principal new features of the legislation compared to the Domestic Violence Act are as follows:

·	young persons aged over 15 and under 18 years of age can obtain domestic violence orders on their own behalf with the leave of the Court and all children can obtain domestic violence orders through an authorised adult such as a relative;

·	domestic violence orders can be made against young persons aged over 15 and under 18 years of age where they perpetrate domestic and family violence;

·	other persons in close relationships (carer’s relationships, betrothals, promised wives, dating relationships) can obtain domestic violence orders where they experience violence in their relationships;

·	the basis on which a domestic violence order is granted is that there are reasonable grounds for the protected person to fear domestic violence by the defendant;

·	economic abuse and intimidation are grounds for Orders;

·	where a child witnesses family violence be a ground for seeking a domestic violence order on the child’s behalf by a Police officer or child protection worker;

·	there is a presumption in favour of the victim with children remaining in the family home when a domestic violence order is made (so that it is the offender who must leave the family home);

·	the Court can make domestic violence orders mandating that an offender attend rehabilitation and treatment programs;

·	the Court is obliged to explain to the applicant and the offender, in an appropriate language or appropriate terms, the effect of the domestic violence order;

·	publication of the details of children affected by domestic violence is prohibited and that the Court have the power to prohibit the publication of other details of a personal nature;

·	the vulnerable witness provisions akin to those in the Evidence Act apply to applicants and persons giving evidence when domestic violence orders are being sought;

·	the maximum penalty for breach of an domestic violence order is increased  to two years imprisonment, and the offence is one of strict liability;

·	for a breach of a domestic violence order the Court is required to impose a term of actual imprisonment for a second or subsequent offence unless it is of the opinion that such a penalty should not be imposed, with the exception being where harm has been caused to the victim and in which case a term of imprisonment is to be imposed;

·	where a young person between 15 and 18 is being sentenced in proceedings for a breach of a domestic violence order the above provisions in relation to sentencing an adult apply to the extent provided by the sentencing principles in the Youth Justice Act.
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NOTES ON CLAUSES

PREAMBLE

This sets out the rationale of the Legislative Assembly in enacting the Bill.   It states that the Legislative Assembly recognises that domestic and family violence is unacceptable behaviour which it does not condone and that it has long-lasting consequence for victims and negative consequences for the community, workplace and the economy.

Chapter 1 	Introduction

Part 1.1 – Preliminary matters

Clause 1.	Short Title

This is a formal clause which provides for the citation of the Bill.  
The Bill when passed may be cited as the Domestic and Family Violence Act 2007.

Clause 2.	Commencement

The Act will commence on the day or days fixed by the Administrator by notice in the Northern Territory Government Gazette.

Clause 3.	Objects of Act and their achievement

This clause sets out the objects of the Act (safety of persons, responsibility of persons who commit domestic violence and the reduction/prevention of domestic violence).

The clause also sets out that the main means of achieving the objectives is the making of domestic violence orders, changing wrong behaviour and enforcement of the orders.

Part 1.2 – Interpretation

Division 1 – Defined terms

Clause 4.	Definitions

This clause sets out the main definitions. 

Division 2 – Important concepts

Subdivision 1 – Concepts relating to domestic violence

Clause 5.	Domestic violence

This clause sets out the meaning of “domestic violence”.

Clause 6.	Intimidation

This clause sets out the meaning of “intimidation”.

Clause 7.	Stalking

This clause sets out the meaning of “stalking”.

Clause 8.	Economic abuse

This clause sets out the meaning of “economic abuse”.

Subdivision 2 – Concepts relating to domestic relationships

Clause 9.	Domestic relationship

This clause sets out the meaning of “domestic relationship”.

Clause 10.	Family relationship

This clause sets out the meaning of “family relationship”.

Clause 11.	Intimate personal relationship

This clause sets out the meaning of “intimate personal relationship”.

Clause 12.	Carers relationship

This clause sets out the meaning of “carers relationship”.

Subdivision 3 – Concepts relating to parties to domestic violence

Clause 13.	Protected person 

This clause sets out the meaning of “protected person - being the person or persons, in a domestic relationship with a defendant (see clause 14) whose protection is being sought by an order.

Clause 14.	Defendant

This clause sets out the meaning of “defendant”.  A defendant must be 15 years or more of age and is the person named in a domestic violence order (or in an application for one) as the person against whom the order is made (or sought).

Division 3 – Criminal responsibility

Clause 15.	Declared offences for Criminal Code

The offences in this Act will be governed by the principles of criminal responsibility set out on Part IIAA of the Criminal Code.

Chapter 2 	Domestic violence orders

Part 2.1 – Preliminary matters

Clause 16.	Objects of Chapter

The object of Chapter 2 is to provide for the making, variation and revocation of domestic violence orders. By definition (see clause 4) varying an order includes extending an order.

Clause 17.	When person taken to have committed domestic violence

Clause 17 sets out that a person who counsels or procures someone else to commit domestic violence is deemed to have also committed any resulting domestic violence.

Part 2.2 – Making of domestic violence orders

Clause 18.	When DVO may be made

This clause provides that an issuing authority (Court, clerk of court or police) may make a domestic violence order only if satisfied that the protected person has reasonable grounds to fear domestic violence from the defendant.

The clause also sets out the additional grounds for making a domestic violence order where the protected person is a child.  These are where the issuing authority is satisfied the child has been, and is like to again be, exposed to domestic violence or if there is a reasonable fear of exposure to domestic violence.

Clause 19.	Matters to be considered in making DVO

This clause sets out that the paramount consideration of an issuing authority in dealing with a domestic violence order is the safety and interests of the protected person (see clause 13)  and any affected children.  Consideration must also be given to court orders, accommodation needs, the defendant’s criminal records, defendants previous conduct and other matters consider relevant by the issuing authority.

Clause 20.	Presumption in favour of protected person with child remaining at home

Issuing authorities, in determining whether in the situation where there is a child, the defendant or the protected person live in the family home, are subject to the presumption that the interests of the protected and the affected child are best served by them remaining in the home.

Part 2.3	Content of domestic violence orders

Clause 21.	What DVO may provide

This clause sets out what may be the subject of a domestic violence order.  Such orders may impose restraints and obligations.  The contents of subclause (1) do not limit the kinds of orders that may be imposed.

Clause 22.	Premises access order

Issuing authorities may include in a domestic violence order a requirement to vacate premises and also conditions about access.  

Clause 23.	Order for replacement tenancy agreement

This clause provides that the Court may terminate tenancy agreements and replace them so that the protected person rather than the defendant is the tenant.  

Clause 24.	Order for rehabilitation program

Clause 24 provides that a Court may make a domestic violence order requiring the defendant to take part in a rehabilitation program.  The Court must be satisfied that the program is available and suitable to the defendant’s needs and that the defendant consents to it. 

Clause 25.	Protected person’s residential address not to be included in order

This clause states that a domestic violence order or related order must not contain the address of the protected person unless, amongst other matters, the address is necessary to ensure compliance with the domestic violence order (eg a condition prohibited access to premises that the defendant knows are the premises at which the protected person lives),

Clause 26.	Prohibition on publication of personal details

A Court may include in a domestic violence order a prohibition on publication of the personal details of a protected person or a witness.  Such orders could also include a prohibition on publishing details of the defendant if those details are also personal details of the protected person.

Clause 27.	Duration of DVO

A domestic violence order lasts for the period stated in the domestic violence order.  If no period is stated, the period is indefinite.

Part 2.4 – Domestic violence orders made by Court of Summary Jurisdiction 

Division 1 – Application process

Clause 28.	Who may make application

This clause sets out the persons who may seek a domestic violence order from the Court of Summary Jurisdiction.  These people include adults, persons aged between 15-18 in a domestic relationship, persons acting for someone in a domestic relationship and police officers.  While an application may be made by only one person it may be for the protection of more than one persons.

The Court may only deal with an application by a person aged 15-18 if satisfied that such a person understands the effect of the application and the effect of a domestic violence order.

Clause 29.	When application must be made for child

An application to a Court for a domestic violence order concerning a child must be made by a police officer of a child protection officer if such a person reasonably believes that domestic violence has been or is being committed and if either the child’s welfare has been adversely affected or the child, is likely to be exposed to the violence.  

Clause 30.	How application is made

This clause states that an application for a domestic violence order from a Court must be in form approved by the Chief Magistrate and must be filed in the Court.

Clause 31.	Notice of hearing of application

The clerk must provide details of time and place of hearings as soon as possible after an application is filed in the Court.

Division 2 – Hearing process

Clause 32.	Court may decide application in absence of the defendant

A Court may decide on an application for a domestic violence order despite the defendant not being present or not having been summoned to appear.

Clause 33.	When clerk may decide application for order

A clerk of the Court may conduct a hearing on an application for a Court domestic violence order.   However, a clerk may only conduct a hearing if the defendant was not summoned and if the defendant does not appear.  This section is read with section 38 so that the clerk of the court may make an order of the defendant appears and consents to the making of the domestic violence order.

Clause 34.	Referral of application to Court

This clause provides for the circumstances in which a clerk must refer a domestic violence order matter to the Court.

Clause 35.	Interim DVO

This clause provides for the making of interim domestic violence orders, including in circumstances where the defendant appears and opposes the making of an Order.   

Division 3 – Miscellaneous matters

Clause 36.	Notice of DVO

This clause imposes on the clerk of the Court the duty to provide copies of a domestic violence order to the parties and also to the Commissioner of Police (if a police officer is not already a party).

Clause 37.	DVO taken to be summons to appear before Court

This clause provides that a defendant must be summoned to appear before the Court if a domestic violence order is made by the Court in the absence of the defendant and where the defendant was not summoned to appear at the hearing of the application.

Part 2.5 – Domestic violence orders made with consent of parties

Clause 38.	When consent DVO may be made

This clause provides for consent orders to be made by the Court or by a clerk of the Court.

Clause 39.	When clerk must refer matter to Court

For cases where the clerk of the Court has jurisdiction, the clerk must refer the matter to the Court if the clerk is not satisfied that the domestic violence order should be made.

Clause 40.	Notice of DVO

Where a consent domestic violence order is made a clerk of the Court has the duty to provide copies of the domestic violence order to the parties and also to the Commissioner of Police (if a police officer is not a already a party)

Part 2.6 – Domestic violence orders made by authorised police officers

Clause 41.	When authorised police officer may make DVO

This clause sets out the circumstances in which an authorised police officer may made a domestic violence order. To make such an order the police officer must be satisfied that the urgency is such that it is not possible to obtain a domestic violence order from the Court.  The officer must also be satisfied that the order is necessary for the person’s safety and that a Court domestic violence order might reasonably have been made if there was an opportunity to obtain one.

Clause 42.	Matters to be recorded on DVO

This clause sets out that a police officer issuing a domestic violence order must record on it details of the reasons for making and the time (which must be as soon as is practical) for its return (to Court).

Clause 43.	What police officer must do after DVO is made

This clause imposes on the police a duty to provide copies of a domestic violence order to the parties and also send the original to the Court.  The police officer must also explain the terms of the order including any restrictions or obligations imposed by the order, the consequences if the defendant contravenes it and the defendant’s right of review.  This must be done in either a language, or in terms that the defendant will understand. 

Clause 44.	DVO taken to be summons to hear before Court

This clause sets out that a domestic violence order issued by Police is deemed to be summons to appear before the Court at a specified time for the purposes of showing cause why the domestic violence order should not be confirmed by the Court.

Part 2.7 – Domestic violence orders made by courts in criminal proceedings

Clause 45.	Power of court if person guilty of related offence

This clause sets out that a Court can make a domestic violence order if a person pleads guilty to, or is guilty of a domestic violence related offence.

Clause 46.	Notice of DVO

This clause imposes on the Court the duty to provide copies of a domestic violence order to the parties and to the Commissioner of Police.

Part 2.8 – Variation and revocation of domestic violence orders 

Division 1 – Variation and revocation by Court

Subdivision 1 – Application of Division 

Clause 47.	DVOs to which Division applies

Division 1 of Part 2.8 does not apply to interim domestic violence order.

Subdivision 2 – Application of variation or revocation

Clause 48.	Who may apply for variation or revocation

This clause sets out the persons who can apply for a variation or revocation of domestic violence order (other than interim domestic violence order).  These people include adults, persons aged between 15-18 in a domestic relationship, a police officer or persons acting for a protected person, the defendant and a person granted leave by the Court to make the application.  While an application may be made by only one person it may be for the protection of more than one persons.  

The Court may only deal with an application by a defendant if it is satisfied there has been a substantial change in circumstances since the making of, or last variation of, the domestic violence order.

Clause 49.	How application is made

An application for a domestic violence order must be made in a form approved by the Chief Magistrate and must be filed in the Court.

Clause 50.	Notice of hearing of application

This clause provides that a clerk must give written notice of the time and place for the hearing of the application to the parties, including the Commissioner where the Court domestic violence order is a police order confirmed under Part 2.10.

Subdivision 3 – Court hearings for of variation or revocation

Clause 51.	When Court may vary or revoke DVO

The Court may vary or revoke a domestic violence order on its own motion or on application under subdivision 2 of Part 2.8.

Clause 52.	Right of persons to be heard before decision is made

Persons with a direct interest in a domestic violence order must be given a right to be heard prior to the revocation or variation. For an application on a Court order that is a police order confirmed under Part 2.10 the Commissioner has a right to be heard.

Clause 53.	What must be considered before making order

This clause sets out that in considering an application for a revocation or a variation the Court must consider the same matters required to be consider in an original application for a domestic violence order (see Parts 2. 2 and 2.3).

Clause 54.	Notice of order

This clause imposes on the clerk of the Court the duty to provide copies of a variation or revocation of a domestic violence order to the parties and also to the Commissioner of Police. 

Subdivision 4 – Special provisions for variation ex parte 

Clause 55.	Application of Subdivision

If it is not practical to comply with section 52 (Right of persons to be heard before decision is made), the matter may be dealt with ex parte in accordance with Subdivision 4 of Division 1 of Part 2.8.

Clause 56.	Deciding application

This clause sets out that in considering an application for a revocation or a variation ex parte the Court must consider the same matters required to be consider in an original application for a domestic violence order (see Parts 2.2 and 2.3).

Clause 57.	Referral of application to Court

If the clerk of the Court is not satisfied a domestic violence order should be made or if the defendant does appear (despite not being summoned) and does not consent, the clerk must refer the matter to the Court.

Clause 58.	Notice of decision

This clause imposes on the clerk of the Court the duty to provide copies of an ex parte variation or revocation of a domestic violence order to the parties and also to the Commissioner of Police. 

Clause 59.	Order taken to be summons to appear before Court

This clause sets out that a domestic violence order issued by clerk is deemed to be summons to appear before the Court at a specified time for the purposes of showing cause why the domestic violence order should not be confirmed by the Court.  See Part 2.10 regarding revocations.

Subdivision 5 –Variation or revocation with consent of parties

Clause 60.	Application of subdivision

Subdivision 5 of Division 1 of Part 2.8 deals with domestic violence order made by consent.

Clause 61.	When order may be made

A consent order may be made even though a person with a direct interest in the outcome has not had the chance to be heard.

Clause 62.	When clerk must refer application to Court

The clerk of court must refer a matter to the Court if not satisfied that a consent order should be made.

Clause 63.	Notice of order

This clause imposes on the clerk of the Court the duty to provide copies of a consent variation or revocation of a domestic violence order to the parties and also to the Commissioner of Police. 

Division 2 – Variation of domestic violence orders in urgent circumstances 

Clause 64.	DVOs to which Division applies

This Division does not apply to interim domestic violence order.  

Clause 65.	When application may be made

A police officer may apply to a magistrate for variation of a domestic violence order in urgent circumstances.  This can not occur unless there has been a substantial change in circumstances since when the domestic violence order was made or previously varied.

Clause 66.	How application is made

A police application can be made by any means of electronic communication.  However, prior to the application being made the police officer must record the grounds on an approved form.  Additional information provided orally must also be written down and recorded on the approved form.

Clause 67.	Deciding application

This clause sets out that in considering an application for a variation the police officer must consider the same matters required to be considered in an original application for a domestic violence order (see Parts 2.2 and 2.3).

Clause 68.	What magistrate does if variation order is refused

If a police application for variation is refused the magistrate must record the reasons and inform the police officer of those reasons.

Clause 69.	What magistrate does if variation order is made

This clause imposes on the magistrate the duty to record the reasons and inform the police officer of those reasons.

Clause 70.	What police officers do when variation order is made

When a variation is made by a magistrate the police officer must complete a form of order as directed by the magistrate.  The police officer must provide copies to the parties. 

Clause 71.	Order taken to be summons to appear before Court

This clause sets out that a variation to a domestic violence order issued by a magistrate is deemed to be a summons to appear before the Court at a specified time for the purposes of showing cause why the domestic violence order should not be confirmed by the Court.  See Part 2.10 regarding confirmations of domestic violence order.

Part 2.9 – Review of police domestic violence orders 

Clause 72.	Application for review

A protected person or a defendant in a police domestic violence order may apply to a magistrate for a review.

Clause 73.	How application is made

A defendant’s application can be made by any means of electronic communication.  However, prior to the application being made the protected person or the defendant must tell a police officer and the police officer must facilitate the application for the review. 

Clause 74.	Deciding application

The magistrate, in reviewing a decision concerning a police domestic violence order must consider the application on the same basis as applied when a domestic violence order is being made and its terms are being decided.  The magistrate must record the reasons for the decision and must inform the police officer of the reasons.

Clause 75.	What police officer must do if DVO is revoked

If the magistrate revokes a domestic violence order the police officer must inform the protected person and the defendant of the revocation and the reasons for the revocation.

Clause 76.	What police officer must do if DVO is confirmed without variations

If the magistrate confirms a domestic violence order the police officer must inform the protected person and the defendant of the confirmation and the reasons for the domestic violence order.

Clause 77.	What magistrate must do if DVO is confirmed with variations

If the magistrate confirms a domestic violence order with variations the magistrate must inform the police officer of the terms of the domestic violence order as varied and the time and place where the Court will deal with the matter. 

Clause 78.	What police officers must do if DVO is confirmed with variations

If the order is confirmed with variations the police officer, as directed by the magistrate, must record on the appropriate form the terms, the Magistrate’s name and date and time it was made, and give a copy to the parties and send the original to the Court.

Clause 79.	Order taken to be summons to appear before Court

If the order is confirmed with or without variations, the form of order is a summons to the defendant to appear before the court as stated and show cause why the order should not be confirmed by the Court.

Part 2.10 – Confirmation of domestic violence orders

Clause 80.	Application of Part

Part 2.10 applies where a defendant has to show cause as to why a domestic violence order should not be confirmed.

Clause 81.	Appearing at hearing

Clause 81 provides that the protected person appears subject to applicable procedural directions, and where a defendant has been summoned under sections 44 or 71, in relation to police orders, the Commissioner is a party to the proceeding. 

Clause 82.	Decision at hearing

At a hearing under Part 2.10, a Court may confirm the domestic violence order or revoke the domestic violence order.  However, before doing so the Court must be satisfied that the defendant has been served with the copy of the domestic violence order and must have considered the evidence before it and any submissions in respect of the evidence.

Clause 83.	Notice of order

The clerk of the Court must, when the Court makes a Part 2.10 decision, give an appropriate notice to the parties and the Commissioner of Police.

Part 2.11 – Special police powers

Clause 84.	Power to remove and detain

Clause 84 sets out the scope of police powers to enter premises and detain person where they believe that grounds exist for the making of an order or where it is necessary to prevent imminent risk to another person, or damage to property including the injury or death of an animal.  Police may take a person into custody for no more than 4 hours.

Clause 85.	Retrieval of defendant’s personal property

Clause 85 provides that where a premises access order has been made the defendant may return to the premise for the purpose of collecting their personal property accompanied by a police officer to retrieve that personal property.  In these circumstances the defendant is not in contravention of the domestic violence order because of the entry to the premises.

Part 2.12 – Miscellaneous matters 

Clause 86.	DVO may be made regardless of criminal proceeding

A domestic violence order may be made despite the fact that criminal proceedings are taking place in respect of the facts relevant to the domestic violence order.

Clause 87.	DVO may not affect other liability

The issuing of a domestic violence order does not affect any civil or criminal liability of a defendant concerning a domestic violence order.

Clause 88.	Requirement to give documents to protected person

Clause 88 provides that where protected persons are named in a domestic violence order the Court, the clerk or a police officer must give them a copy of the domestic violence order.  This applies only if the protected person is an adult or young person

Clause 89.	Explanation of court DVO

Clause 89 provides that when a Court domestic violence order is made, confirmed or varied the issuing authority must explain to the defendant and protected person, if the protected person is present the effect of any restrictions and obligations stated in the order; that the order can be registered interstate or in New Zealand; the consequences of a contravention of the order and how it can be varied or revoked.  This must be done in a language or in terms the defendant and/or protected person is likely to readily understand.

Clause 90.	Family law orders

The applicant for a domestic violence order must inform the issuing authority of any family law orders or pending applications.

A police officer when making a police order must make reasonable enquiries about the existence or otherwise of family law orders and pending applications.  The person being asked is obliged to provide the information 

Clause 91.	Costs

An unsuccessful applicant before a Court for a domestic violence order is not liable for costs unless the Court is satisfied that an application for a domestic violence order (or the variation of one) was both unreasonable and made in bad faith.

Chapter 3	External orders

Part 3.1		Preliminary matters

Clause 92.	Objects of Chapter

Chapter 3 deals with the registration of interstate orders that have the effect as domestic violence orders (“external orders).  It also seeks to provide for the operation in the Northern Territory, for limited purposes, of such interstate domestic violence order that have not been registered in the Northern Territory.

Part 3.2 – Registration of orders

Clause 93.	Application for registration

Clause 93 provides that the protected person named in the order or a police officer on their behalf may, in the approved manner, apply to the Court for the registration of an external order

Clause 94.	Registration

Clause 94 provides that a clerk must register the external order or where referred to the Court for modification, the clerk must register the modified external order

Clause 95.	Notice of registration

Clause 95 provides that the clerk must give notice of registration of the registered order to the protected person, the applicant if not the protected person or a police officer and the registrar of the Court.  The clerk must not give a copy to the defendant without the applicant’s consent

Clause 96.	Period of registration

An external order registered in the Northern Territory operates for the same length of time in the Northern Territory as it operates in the jurisdiction in which it was made. 

Clause 97.	Effect of registration

A registered external order has the same status in the Northern Territory as a Court domestic violence order.  

Part 3.3 – Variation and revocation of registered external orders 

Clause 98.	Application for variation or cancellation of order

An application to the Court for the registration of a variation or cancellation of an external order can be made by the protected person named in the order, a police officer or an adult acting on behalf of a protected person or the defendant.

Clause 99.	How application is made

Clause 99 provides that the application is taken to be an application for registration of an external order under Part 3.2. 

Clause 100.	Notice of registration

If the defendant made an application (under Part 3.3), the clerk of the Court must give notice to the defendant.

Part 3.4 – Unregistered orders 

Clause 101.	Enforcement of unregistered external order

If a police officer reasonably believes that a person in the Northern Territory is a defendant in an unregistered external order, the police officer must make an appropriate declaration and give a copy to the Commissioner of Police.

Clause 102.	Duration of declaration

Clause 102 provides that the declaration is in force for 72 hours only.

Clause 103.	Effect of declaration

Clause 103 provides that for those 72 hours the external order is taken to be a Court domestic violence order that has been properly served on the defendant

Chapter 4 	Legal proceedings and evidentiary matters

Part 4.1 – Evidence in proceedings for domestic violence orders

Division 1 – Preliminary matters
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Clause 104.	Definitions

This clause contains definitions necessary for Part 4.1 (Division 1)

Clause 105.	Application of Part

Clause 105 provides that Part 4.1 applies only to a proceeding for the hearing of an application for a domestic violence order or the confirmation, variation or revocation of a domestic violence order 

Part 4.1 applies to proceedings for a domestic violence order or for a confirmation, variation or revocation of a domestic violence order

Division 2 – Closure of Court in certain cases

Clause 106.	When Court to be closed

The Court must be closed if all of the protected persons are children.  It must also be closed when a vulnerable witness (see defined in clause 104) is giving evidence.  However

·	A court may be open if this is necessary in the interests of justice; and

·	Particular persons may be ordered to leave the room whilst a witness is giving evidence.

Division 3 – Evidence of children 

Clause 107.	How evidence of child given

Clause 107 provides that the evidence of a child (being a person under 18 years of age) must be given in a written or recorded statement.  When the child is making the statement he or she is entitled to be accompanied by a relative, adult friend or another person the Court considers appropriate

Clause 108.	Admission of child’s evidence

Clause 108 provides that a child’s statement may be admitted in evidence if it states the child’s age and that the either the child read it or someone else read it to the child and the reason why it was read to the child.  A recorded statement must have a transcript stating how, when and by whom it was recorded and certified as correct by the party seeking to have it admitted.  A transcript of the child’s statement must be provided to the defendant or the defendant’s lawyer.

Clause 109.	No cross-examination of child

A child cannot be cross examined regarding a statement.  Such a child is also not required to attend the hearing.

Division 4 – Evidence of vulnerable witnesses

Clause 110.	How evidence of vulnerable witness given

Clause 110 provides that a vulnerable witness can give evidence outside the Courtroom using an audiovisual link, or where an audiovisual link is not available or where the witness chooses, to give evidence using a screen, partition or one-way glass to obscure the witness’ view of the defendant.  

This clause operates subject to clause 112 (Court’s power relating to vulnerable witness giving evidence)

Clause 111.	Vulnerable witness entitled to support

A vulnerable witness may be accompanied by a person to provide emotional support.  This clause operates subject to clause 112 (Court’s power relating to vulnerable witness giving evidence)

Clause 112.	Court’s power relating to vulnerable witness giving evidence

Notwithstanding the previous 2 clauses, clause 112 provides that the Court may not allow special provisions in the Court such as a screen or partition etc or to be accompanied by a support person if it is satisfied that it is not in the interests of justice or because the matter is urgent.   In making its decision the court must have regard to the need to minimise harm to the witness and whether the witness can give evidence effectively.  

Clause 113.	Evidence given outside courtroom

Clause 113 provides that where evidence is given using an audiovisual link the place will be taken to be in the Court.  The Court will decide who is present in the room while the witness gives evidence and may give directions to ensure other relevant matters

Division 5 – General matters

Clause 114.	Cross- examination by unrepresented defendant

Clause 114 provides that where a defendant is unrepresented the Court may order that any question put to the applicant or witness is put through the Court only.

Part 4.2 – Hearing procedures

Clause 115.	Procedural directions

The Court may give procedural directions for the fair and expeditious hearings of a proceeding.   Such directions may deal with the right of a party to appear at the hearing.

Part 4.3 – Other evidentiary matters

Clause 116.	Hearsay evidence

This clause provides that hearsay evidence may be heard in all proceedings except those for a contravention of a domestic violence order.

Clause 117.	Evidentiary value of endorsement on Court file

Notes on a court file signed by a clerk of Court are evidence that a defendant was before the Court when the order was made and that the Court explained the matters required by clause 89 (Explanation of court DVO)

Chapter 5 	Enforcement 

Part 5.1 – Interpretation 

Clause 118.	Definition

This clause defines the meaning of the word “copy” as used in Part 5.1.

Clause 119.	When DVO is given to defendant

This clause sets out how domestic violence orders are provided to defendants.

Part 5.2 – Offences 

Clause 120.	Contravention of DVO by defendant

It is an offence of strict liability for a person to contravene a domestic violence order.  The domestic violence order must have been provided to the person.  The penalty for breach is set out in clauses 121 (adults) and 122 (young persons). 

Clause 121.	Penalty for contravention of DVO - adult

If an adult breaches clause 120, the maximum penalty is 400 penalty units ($44,000) or 2 years imprisonment.

However, if the offence is a 2nd or subsequent offence and the offence has resulted in harm to a protected person the Court must, as a general rule, record the conviction and order at least 7 days imprisonment.  This will only apply to Court domestic violence orders and not to police orders that have yet to be confirmed by the Court. 

The Court may waive this general rule if satisfied that such an order is not appropriate because of the circumstances of the offence.

An order must not be such as to result in the release of a person from the requirement to actually serve the term of imprisonment imposed.

Clause 122.	Penalty for contravention of DVO – young person

If a young person (aged 15-18) breaches clause 120, the maximum penalty is 400 penalty units ($44,000) and or 2 years detention or imprisonment.

However, subclause (2) provides that if the offence is a 2nd or subsequent offence and the offence has resulted in harm to a protected person the Court must, as a general rule, record the conviction and order at least 7 days detention or imprisonment.  This will only apply to Court domestic violence orders and not to police orders that have yet to be confirmed by the Court. 

The Court may waive this general rule if satisfied that such an order is not appropriate because of the circumstances of the offence, including because of the person’s age.

Subclause (2) does not apply to a police domestic violence order unless the domestic violence order has been confirmed by the Court.

Clause 123.	Publication of names and identifying information about children

As a general rule it is offence of strict liability (maximum penalty 200 penalty units ($22,000) and or imprisonment for 1 year) for a person to publish the name of a child who is a protected person named in a domestic violence order or who is or may be a witness in a domestic violence order matter or who is or is likely to be mentioned in a domestic violence order.  The exceptions to the general rule if the publication occurs in an official report of the proceedings or if the Court consents to the publication.

Clause 124.	Publication of personal details

It is an offence of strict liability (maximum penalty 200 penalty units ($22,000) and or imprisonment for 1 year) a person publishes a person’s personal details in breach of an order of a court domestic violence order.

Chapter 6 	Miscellaneous matters 

Clause 125.	Protection of health practitioner reporting domestic violence

A health professional (as defined in the Health Practitioners Act) is not civilly or criminally liable or in breach of rule of a professional code of conduct for making a report (to the police) or disclosing information in such a report after reasonably forming the view that (1) domestic violence has been committed and that (2) the violence has resulted in (or is likely to) harm being caused to a person.  

The contents are, as a general rule, not admissible in a court nor is the writer compelled to give evidence about the contents.  The general rule can only be waived if the record is of “critical importance” or if the failure to waive would prejudice the administration of justice.

Clause 126.	Approved forms

The Chief Magistrate must make approved forms (as required for the Act) and may approve other forms for the purposes of the Act.  If a form is made, the relevant document must be made in the approved form.

Clause 127.	Regulations

The Administrator may make Regulations.  See sections 38F (offences and penalties) and 65A-65D (various other matters) of the Interpretation Act for the matters that may be covered by such regulations.

Chapter 7 	Repeals and transitional matters 

Part 7.1 – Repeals 

Clause 128.	Acts repealed

This clause provides for schedule 1 which sets out the names of the Acts to be repealed.

Part 7.2 – Transitional Matters

Clause 129.	Definitions

This clause contains definitions for the purposes of Part 7.2.

Clause 130.	Restraining orders

This clause provides that where a restraining order was in place, or a pending application for an order was finalised after the repeal of the old Act, or a restraining order was confirmed or varied under the old Act, the resulting order is taken to be a domestic violence order under the new Act.  A restraining order under the old Act can be revoked under either the old or the new Act.

Clause 131.	Registered external restraining orders

This clause provides that where a registered external restraining order was in place, or a pending application for registration of an external order was finalised after the repeal of the old Act, or a pending application for registration of an external an order referred to the Court for modification was finalised after the repeal of the old Act, the resulting order is taken to be a registered external order under this Act.

Clause 132.	Pending applications for restraining orders

This clause provides that the old Act applies to applications for, or variation or revocation of, a restraining order, or the applications for a registration, or the variation or revocation of, an external restraining order which had not been decided before the commencement of the new Act. 

Clause 133.	Confirmation hearings

This clause provides that the old Act applies to defendants summoned to appear before the Court to show cause why an order should not be confirmed and where a proceeding had not been finalised before the new Act commenced.

Clause 134.	Pending referrals to Court

Clause 135 provides that the old Act applies to referrals from the clerk to the Court of applications for a restraining order, or a variation or revocation of one, or an application for the registration of an external restraining order which had not been decided before the commencement of the new Act.

Clause 135.	Interpretation Act not affected

This clause provides that this Part does not limit Part III of the Interpretation Act which deals with the repeal and expiration of Acts.

Clause 136.	Transitional regulations

This clause provides that transitional regulations may be made to achieve the transition from the operation of the repealed Act to the new Act or for matters which the new Act does not make sufficient provision for.  This section will expire 1 year after the commencement date of the new Act

Such regulations may have retrospective effect back to the day of assent of the Act.

Chapter 8 	Consequential amendments of laws 

Part 8.1 – Firearms Act

Clause 137.	Act amended

This clause provides that this Part amends the Firearms Act.

Clause 138.	Amendment of section 3 (Interpretation)

This clause inserts definitions of terminology from the new Act in the Firearms Act in place of the definitions of certain terminology from the old Act. 

Clause 139.	Amendment of references to restraining order

This clause provides that references in the Firearms Act to ‘prescribed person’ be omitted, and references to ‘restraining order’ be substituted with ‘final domestic violence order’.

Clause 140.	Amendment of references to interim restraining order

This clause provides that references in the Firearms Act to ‘interim restraining order’ be substituted with ‘interim domestic violence order’.

.

Part 8.2 – Justices Act

Clause 141.	Act amended

Part 8.2 amends the Justices Act.

Clause 142.	Amendment of section 4 (Interpretation)

This clause inserts definitions in the Justices Act.

Clause 143.	Amendment of section 27 (Service of summonses and notices under this Act)

This clause omits reference to the Domestic Violence Act in section 27 of the Justices Act.

Clause 144.	Amendment of section 58 (Issue of warrant)

This clause omits section 58(2)(b) from the Justices Act.

Clause 145.	Repeal and substitution of Part IV, Division 7

This clause repeals Part IVA, Division 7 of the Justices Act and substitutes Part IVA Personal violence restraining orders

Part IVA		Personal violence restraining orders

Division 1	Preliminary matters

80	Definitions

New section 80 sets out the definitions used in Part IVA.

81	Object of and achievement of Part

New section 81 sets out the objects of the Part which is the safety and protection of persons who experience personal violence outside a domestic relationship.

The clause also sets out that the main means of achieving the object which is the making of personal violence restraining orders and the enforcement of the orders.

Division 2	Applying for and making orders

82	Application for order

New section 82 sets out who may apply for a personal violence restraining order against another person: the person seeking protection, an adult on behalf of a person seeking protection or a police officer.

83	Parties to order

New section 83 provides that only one person may be named as the protected person or the defendant in a personal violence restraining order and that a defendant must be 15 years old and above.

84	How application is made

New section 84 provides that an application for a personal violence restraining order must be made in the form approved by the Chief Magistrate and be filed in the Court.

85	Notice of hearing of application

The clerk of the Court must give notice of the time and place of the hearing as soon as is practicable after the application is made.

86	Referral to mediation

New section 86 provides that before hearing an application for a personal violence restraining order the Court must refer the parties to the Community Justice Centre for mediation.  The Court may proceed to hear the matter if it is satisfied it is in the interests of justice because there is a history of violence committed against the protected person and there has been a previous unsuccessful attempt at mediation.  The Director of the Community Justice Centre must give the Court a written report on the outcome of the mediation.  The Court has the discretion to refer the matter back to the Community Justice Centre or take it into account in deciding the application. 

87	Deciding application

New section 87 provides that the test for making a personal violence restraining order is if the Court is satisfied on the balance of probabilities that a personal violence offence has been committed, or is likely to be committed by the defendant against the protected person and it has caused or is likely to cause harm.  The Court has the power to dismiss the application if this test is not met.

88	Matters to be considered by Court

New section 88 sets out that the paramount consideration of the Court when making a personal violence restraining order is the safety and interests of the protected person and any affected children.  Consideration must also be given to the defendant’s criminal records, defendant’s previous conduct and other matters consider relevant by the Court.

89	Content of orders

New section 89 sets out what may be the subject of a personal violence restraining order.  Such orders may impose restraints on the defendant and any other orders the Court considers necessary in the circumstances.  

90	Notice of order

New section 90 provides that the Court must give a copy of the personal violence restraining order to the parties and the Commissioner.

Division 3	Miscellaneous matters

91	Variation or revocation of order

New section 91 sets out the persons who may seek a personal violence restraining order.  These people include adults, young persons aged between 15-18, a police officer or adult acting for the protected person, the defendant and a person granted leave by the court to make the application.

A defendant must demonstrate a substantial change in circumstances for a Court to grant leave to the application. 

92	Contravention of order

New section 92 provides for the offence of a contravention of a personal violence restraining order and that the offence is one of strict liability.  The maximum penalty for the contravention of a personal violence restraining order is 400 units ($44,000) or imprisonment for 2 years

93	Transitional matter for sureties to keep peace

New section 93 provides that orders to keep the peace in place before the commencement date continue in force until it is revoked or it would have ended had the repealed provisions not been repealed.  Pending applications and summons, warrants and other documents issued before the commencement date will continue under the old Act.

Part 8.3 – Amendments of other laws 

Clause 146.	Laws amended

Schedule 2 sets out minor amendments made to other legislation.

Part 8.4 – Expiry of Chapter 

Clause 147.	Expiry

This clause provides that Chapter 8 expires on the day after the date on which Chapter 7 commences or if Part 8.2 relating to the amendments to the Justices Act commence after the commencement of Chapter 7, then the day after the day on which that Part commences.

Schedule 1		Repealed Acts

This contains the names of the Acts repealed. 

Schedule 2		Consequential Amendments to other laws

The schedule provides for amendments to the following Acts and subordinate legislation.

Bail Act

Child Protection (Offender Reporting and Registration) Act

Justices Regulations

Police Administration Act

Residential Tenancies Act

Sentencing Act

Victims of Crime Assistance Regulations

Victims of Crime Rights and Services Act