2007 Act: Apprehended Violence Orders & Related Provisions, Exams of Law

Download 2007 Act: Apprehended Violence Orders & Related Provisions and more Exams Law in PDF only on Docsity! Contents New South Wales Crimes (Domestic and Personal Violence) Act 2007 No 80 Page Part 1 Preliminary 1 Name of Act 2 2 Commencement 2 3 Definitions 2 4 Meaning of “personal violence offence” 3 5 Meaning of “domestic relationship” 4 6 Meaning of “relative” 4 7 Meaning of “intimidation” 5 8 Meaning of “stalking” 5 Part 2 Objects of Act in relation to domestic and personal violence 9 Objects of Act in relation to domestic violence 7 10 Object of Act in relation to personal violence 8 Crimes (Domestic and Personal Violence) Act 2007 No 80 Contents PagePart 3 Domestic violence and other offences 11 Meaning of “domestic violence offence” 9 12 Recording of domestic violence offences 9 13 Stalking or intimidation with intent to cause fear of physical or mental harm 10 14 Offence of contravening apprehended violence order 10 Part 4 Apprehended domestic violence orders 15 Application for making of apprehended domestic violence order by court 12 16 Court may make apprehended domestic violence order 12 17 Matters to be considered by court 13 Part 5 Apprehended personal violence orders 18 Application for making of apprehended personal violence order by court 14 19 Court may make apprehended personal violence order 14 20 Matters to be considered by court 15 21 Referral of matters to mediation 15 Part 6 Interim court orders 22 Interim court orders 17 23 Interim court orders made by Registrar with consent 17 24 Interim court order ceases when final court order made or served 18 Part 7 Provisional orders 25 Application by telephone, facsimile or other communication device 19 26 When application may be made 19 27 Obligation to apply for provisional order in certain circumstances 19 28 Making of provisional order 20 29 Provisional order taken to be application for court order 21 30 Recording of provisional order 21 31 Service 21 32 Duration 21 33 Variation or revocation 22 34 Purported renewal or continuance 22Contents page 2 Crimes (Domestic and Personal Violence) Act 2007 No 80 Contents PageDivision 6 Ancillary provisions 76 Explanation of final apprehended violence orders, interim court orders and variations 42 77 Service of copy of apprehended violence order, interim court order or variation or revocation of any such order 43 78 Orders made with consent of parties 44 79 Duration of final apprehended violence orders 44 80 Enforcement of orders for payment of money 44 81 Concurrent criminal proceedings 44 82 Arrangements regarding classification of orders 45 83 Application of Bail Act 1978 45 Division 7 Appeals 84 Review and appeal provisions concerning making, variation or revocation of apprehended violence orders 45 85 Presumption against stay of order 46 Division 8 Rules 86 Rules in application proceedings 47 87 Forms 48 Part 11 Warrants and powers of police to detain defendants 88 Warrant for arrest of defendant in final apprehended violence order matters 49 89 Detention of defendant for making and service of provisional order 49 90 Detention of defendant for service of order or variation 49 Part 12 Jurisdiction of courts 91 Courts authorised to make orders and determine applications 51 92 Jurisdiction of District Court to issue AVO following dismissal of application by Local Court or Children’s Court 51 93 Jurisdiction of District Court under this Act 52 Part 13 Registration of external protection orders 94 Definitions 53 95 Application for registration of external protection order 53Contents page 5 Crimes (Domestic and Personal Violence) Act 2007 No 80 Contents Page96 Registration of external protection order 53 97 Effect of registration of external protection order 54 98 Variation etc of registered external protection orders 54 Part 14 Miscellaneous 99 Costs 56 100 Parts 2 and 3 of Crimes (Appeal and Review) Act 2001 56 101 Regulations 56 102 Savings, transitional and other provisions 57 103 Amendment of other Acts and regulations 57 104 Review of Act 57 Schedule 1 Savings, transitional and other provisions 58 Schedule 2 Amendment of other Acts and regulations 60Contents page 6 Act No 80, 2007 Crimes (Domestic and Personal Violence) Act 2007 No 80 New South WalesAn Act to protect persons from domestic and personal violence; to repeal Part 15A of the Crimes Act 1900; and to make consequential amendments to other Acts and instruments. [Assented to 7 December 2007] Crimes (Domestic and Personal Violence) Act 2007 No 80Section 5 Part 1 Preliminarysubstitution by the Crimes Amendment (Apprehended Violence) Act 2006) or 562ZG of the Crimes Act 1900, or (b) an offence under section 14 of this Act, or (c) an offence of attempting to commit an offence referred to in paragraph (a) or (b). 5 Meaning of “domestic relationship” For the purposes of this Act, a person has a domestic relationship with another person if the person: (a) is or has been married to the other person, or (b) has or has had a de facto relationship, within the meaning of the Property (Relationships) Act 1984, with the other person, or (c) has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or (d) is living or has lived in the same household as the other person, or (e) is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987), or (f) has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person, or (g) is or has been a relative of the other person, or (h) in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture. 6 Meaning of “relative” For the purposes of this Act, a person is a relative of another person (the other person): (a) if the person is: (i) a father, mother, grandfather, grandmother, step-father, step-mother, father-in-law or mother-in-law, or (ii) a son, daughter, grandson, grand-daughter, step-son, step-daughter, son-in-law or daughter-in-law, or (iii) a brother, sister, half-brother, half-sister, step-brother, step-sister, brother-in-law or sister-in-law, orPage 4 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 7 Part 1Preliminary(iv) an uncle, aunt, uncle-in-law or aunt-in-law, or (v) a nephew or niece, or (vi) a cousin, of the other person, or (b) where the person has a de facto relationship, within the meaning of the Property (Relationships) Act 1984, with somebody else (the person’s partner)—if the other person is: (i) a father, mother, grandfather, grandmother, step-father or step-mother, or (ii) a son, daughter, grandson, grand-daughter, step-son or step-daughter, or (iii) a brother, sister, half-brother, half-sister, step-brother or step-sister, or (iv) an uncle or aunt, or (v) a nephew or niece, or (vi) a cousin, of the person’s partner. 7 Meaning of “intimidation” (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. (2) For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour. 8 Meaning of “stalking” (1) In this Act, stalking includes the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity.Page 5 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 8 Part 1 Preliminary(2) For the purpose of determining whether a person’s conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.Page 6 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 11 Part 3Domestic violence and other offencesPart 3 Domestic violence and other offences 11 Meaning of “domestic violence offence” In this Act, domestic violence offence means a personal violence offence committed by a person against another person with whom the person who commits the offence has or has had a domestic relationship. 12 Recording of domestic violence offences (1) The charge in respect of an offence may indicate that the offence is a domestic violence offence. (2) If a person pleads guilty to an offence or is found guilty of an offence and the court is satisfied that the offence was a domestic violence offence, the court is to direct that the offence be recorded on the person’s criminal record as a domestic violence offence. (3) If the court makes a direction under this section to record an offence as a domestic violence offence, the prosecution may make an application to the court requesting that the court direct that specified offences in respect of which the person has previously pleaded guilty or been found guilty be recorded as domestic violence offences. (4) Any such application is to include sufficient information in support of the request to enable the court to make a decision as to whether such a recording is appropriate. (5) The court may require the prosecutor to provide further information to enable it to make a determination as to whether to direct a recording to be made under this section. (6) If satisfied after considering an application under subsection (3) that an offence referred to in the application was a domestic violence offence, the court is to direct that the offence be recorded on the criminal record of the person concerned as a domestic violence offence. (7) A victim of an offence is not compellable in any proceedings before the court to determine whether the court should make a direction under this section to record an offence as a domestic violence offence. (8) A court that directs a recording to be made under this section or is required to take such a recording into account may, on application or on its own motion, correct the recording if it considers that there is an error in the recording.Page 9 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 13 Part 3 Domestic violence and other offences(9) Regulations may be made for or with respect to the recording of offences under this section, including the manner in which and time within which such recordings are to be made. Note. An indication in the charge for an offence that a person has committed a domestic violence offence will be relevant in bail proceedings. The recording on a person’s criminal record that an offence is a domestic violence offence will be relevant to sections 7 and 8 of this Act, where previous behaviour constituting a domestic violence offence is taken into account for the purpose of determining whether a person’s behaviour amounts to intimidation or stalking, and to sections 27 and 49 of this Act, which require police to make applications for apprehended domestic violence orders in situations where the person in question has already committed a domestic violence offence. Section 21A of the Crimes (Sentencing Procedure) Act 1999 provides that a record of previous convictions is an aggravating factor to be taken into account when determining the appropriate sentence for an offence. 13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. 14 Offence of contravening apprehended violence order (1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence. Maximum penalty: Imprisonment for 2 years or 50 penalty units, or both. (2) A person is not guilty of an offence against subsection (1) unless: (a) in the case of an apprehended violence order made by a court, the person was served with a copy of the order or was present in court when the order was made, orPage 10 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 14 Part 3Domestic violence and other offences(b) in any other case, the person was served with a copy of the apprehended violence order. (3) A person is not guilty of an offence against subsection (1) if the contravention of the prohibition or restriction concerned: (a) was necessary in order to attend mediation under section 21, or (b) was done in compliance with the terms of a property recovery order. (4) Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person. (5) Subsection (4) does not apply if the person convicted was under 18 years of age at the time of the alleged offence. (6) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so. (7) A person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of an offence against subsection (1) if the person is a protected person under the order concerned. (8) A police officer is to make a written record of the reasons for: (a) a decision by the police officer not to initiate criminal proceedings against a person for an alleged contravention of subsection (1) (whether or not the person is arrested), or (b) a decision by the police officer not to proceed with criminal proceedings against a person for an alleged contravention of subsection (1), if the police officer or another police officer suspects on reasonable grounds that the person has committed an offence against that subsection or if an alleged contravention of that subsection by the person has been reported to the police officer or another police officer. Note. The Law Enforcement (Powers and Responsibilities) Act 2002 contains powers of police officers in relation to suspected offences, including a power to arrest a person, without warrant, if the police officer suspects on reasonable grounds that a person has committed an offence.Page 11 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 18 Part 5 Apprehended personal violence ordersPart 5 Apprehended personal violence orders 18 Application for making of apprehended personal violence order by court (1) An application may be made in accordance with Part 10 for an apprehended personal violence order for the protection of one or more persons against another person. (2) An application is to be treated as an application for an apprehended domestic violence order if one or more of the persons for whose protection the order would be made has or has had a domestic relationship with the person against whom it is sought. 19 Court may make apprehended personal violence order (1) A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears: (a) the commission by the other person of a personal violence offence against the person, or (b) the engagement of the other person in conduct in which the other person: (i) intimidates the person, or (ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order. (2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if: (a) the person is a child, or (b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function. (3) For the purposes of this section, conduct may amount to intimidation of a person even though: (a) it does not involve actual or threatened violence to the person, or (b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person. Note. Part 8 provides for the matters that may be included in orders. Part 9 contains additional provisions relevant to the making of orders.Page 14 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 20 Part 5Apprehended personal violence orders20 Matters to be considered by court (1) In deciding whether or not to make an apprehended personal violence order, the court must consider the safety and protection of the person seeking the order and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order. (2) Without limiting subsection (1), in deciding whether or not to make an apprehended personal violence order, the court is to consider: (a) in the case of an order that would prohibit or restrict access to the defendant’s residence—the effects and consequences on the safety and protection of the protected person and any children living or ordinarily living at the residence if an order prohibiting or restricting access to the residence is not made, and (b) any hardship that may be caused by making or not making the order, particularly to the protected person and any children, and (c) the accommodation needs of all relevant parties, in particular the protected person and any children, and (d) any other relevant matter. (3) When making an apprehended personal violence order, the court is to ensure that the order imposes only those prohibitions and restrictions on the defendant that, in the opinion of the court, are necessary for the safety and protection of the protected person, and any child directly or indirectly affected by the conduct of the defendant alleged in the application for the order, and the protected person’s property. (4) If an application is made for an apprehended personal violence order that prohibits or restricts access by the defendant to any premises or place and the court hearing proceedings in respect of the application decides to make an order without the prohibition or restriction sought, the court is to give reasons for that decision. 21 Referral of matters to mediation (1) At any time when considering whether to make an apprehended personal violence order or after making such an order, a court may refer the protected person and the defendant for mediation under the Community Justice Centres Act 1983. (2) A matter is not to be referred to mediation under this section if the court is of the opinion that: (a) there has been a history of physical violence to the protected person by the defendant, or (b) the protected person has been subjected to conduct by the defendant amounting to a personal violence offence, orPage 15 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 21 Part 5 Apprehended personal violence orders(c) the protected person has been subjected to conduct by the defendant amounting to an offence under section 13, or (d) the defendant has engaged in conduct amounting to harassment relating to the protected person’s race, religion, homosexuality, transgender status, HIV/AIDS infection or disability, or (e) there has been a previous attempt at mediation in relation to the same matter and the attempt was not successful. (3) Nothing in this section affects section 24 of the Community Justice Centres Act 1983. Note. Section 24 of the Community Justice Centres Act 1983 enables the Director of Community Justice Centres to decline to consent to the acceptance of a dispute for mediation and enables the Director or a mediator to terminate a mediation session at any time. (4) The Director of Community Justice Centres is to provide a written report on the outcome of the mediation or attempted mediation to the court that referred the matter for mediation. (5) On receiving a report under subsection (4), the court is to take such action in accordance with this Act as it considers appropriate in relation to the matter concerned and in doing so may take into account the contents of the report. (6) If a matter is referred to mediation under this section without an order having been made, any proceedings in relation to the application are taken to have been stayed until a report is provided under subsection (4). (7) If the Director of Community Justice Centres provides a report under subsection (4) or a mediator conducts a mediation of a matter referred under this section, the Director or the mediator is taken, for the purposes of the provisions of the Community Justice Centres Act 1983, to be exercising those functions for the purpose of executing that Act.Page 16 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 25 Part 7Provisional ordersPart 7 Provisional orders 25 Application by telephone, facsimile or other communication device (1) A police officer may apply by telephone, facsimile or other communication device to an authorised officer for an interim apprehended domestic violence order or an interim apprehended personal violence order. (2) An interim apprehended domestic violence order or an interim apprehended personal violence order made on an application under this section is referred to in this Act as a provisional order. (3) An application for a provisional order: (a) may be made at the request of the protected person or on the police officer’s own initiative, and (b) may be transmitted to the authorised officer by another person on behalf of the applicant if it is not practicable for the application to be made by the person by telephone, facsimile or other communication device directly to the authorised officer. 26 When application may be made (1) An application may be made by telephone, facsimile or other communication device if: (a) an incident occurs involving the person against whom the provisional order is sought to be made and the person who would be protected by the provisional order, and (b) a police officer has good reason to believe a provisional order needs to be made immediately to ensure the safety and protection of the person who would be protected by the provisional order or to prevent substantial damage to any property of that person. (2) An application may be made at any time and whether or not the court is sitting. 27 Obligation to apply for provisional order in certain circumstances (1) An application must be made for a provisional order if: (a) a police officer investigating the incident concerned suspects or believes that: (i) a domestic violence offence or an offence against section 13 has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, orPage 19 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 28 Part 7 Provisional orders(ii) an offence under section 227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998 (but only in relation to a child) has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or (iii) proceedings have been commenced against a person for an offence referred to in subparagraph (i) or (ii) committed against the person for whose protection an order would be made, and (b) the police officer has good reason to believe an order needs to be made immediately to ensure the safety and protection of the person who would be protected by the order or to prevent substantial damage to any property of that person. (2) The application may be made by any police officer. (3) An application need not be made in the circumstances referred to in subsection (1) if an apprehended violence order is already in force against the defendant for the protection of the person concerned. (4) An application need not be made in the circumstances referred to in subsection (1) if the person for whose protection an order would be made is at least 16 years of age at the time of the incident and a police officer investigating the incident believes: (a) that the person intends to make an application for an apprehended violence order, or (b) that there is good reason not to make the application. (5) However, if the police officer investigating the incident believes that there is good reason not to make the application, the police officer must make a written record of the reason. (6) For the purposes of subsection (4), the reluctance of the person to make an application does not, on its own, constitute a good reason for a police officer not to make an application if the police officer reasonably believes that: (a) the person has been the victim of violence or there is a significant threat of violence to the person, or (b) the person has an intellectual disability and has no guardian. 28 Making of provisional order (1) An authorised officer to whom an application is made for a provisional order may, if satisfied that there are reasonable grounds for doing so, make the provisional order.Page 20 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 29 Part 7Provisional orders(2) Section 21 (Referral of matters to mediation) applies to an authorised officer when considering whether to make a provisional order that is an interim personal apprehended violence order or after making such an order in the same way as it applies to a court. (3) Section 81 applies to the making of a provisional order in the same way as that section applies to other orders. 29 Provisional order taken to be application for court order (1) A provisional order is taken, for the purposes of this Act, to be an application for an order under Part 10. (2) The provisional order is to contain a direction for the appearance of the defendant at a hearing of the application by an appropriate court on a date specified in the order by the authorised officer who makes it (being a date that is not more than 28 days after the making of the provisional order). 30 Recording of provisional order (1) The authorised officer who makes a provisional order is to inform the applicant of the terms of the order and the date and time when the order was made. (2) The applicant is to complete a form of order in the terms so indicated and write on it the name of the authorised officer, the date and time when the order was made and the date of the hearing of the application. (3) When the form of order is completed, it is taken to be a provisional order. (4) An authorised officer may, instead of proceeding under subsection (1), furnish the provisional order to the applicant. (5) An applicant who is furnished with a provisional order under subsection (4) is to include in the order the date of the hearing of the application. 31 Service A provisional order is to be served personally on the defendant by a police officer as soon as practicable after it is made. 32 Duration (1) A provisional order remains in force until midnight on the twenty-eighth day after the order is made, unless it is sooner revoked or ceases to have effect under subsection (2) or the application for a final apprehended violence order is withdrawn or dismissed.Page 21 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 36 Part 8 Content and effect of apprehended violence orders(4) If a court or an authorised officer makes an apprehended violence order that prohibits or restricts the possession of firearms by the defendant, the court or authorised officer may, by the order, require the defendant to dispose of firearms in the defendant’s possession and to surrender to the Commissioner of Police any licence, permit or other authority under the Firearms Act 1996 or the Weapons Prohibition Act 1998 held by the defendant. (5) A reference in this section to a court includes a reference to a Registrar. 36 Apprehended violence order prohibits stalking, intimidation etc Every apprehended violence order is taken to specify that the defendant is prohibited from doing any of the following: (a) assaulting, molesting, harassing, threatening or otherwise interfering with the protected person or a person with whom the protected person has a domestic relationship, (b) engaging in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship, (c) stalking the protected person or a person with whom the protected person has a domestic relationship. 37 Ancillary property recovery orders may be made (1) A court or an authorised officer may, when making an apprehended domestic violence order or an interim apprehended domestic violence order, make an ancillary property recovery order if: (a) the protected person has left personal property at premises which the defendant occupies, or (b) the defendant has left personal property at premises which the protected person occupies. (2) A property recovery order may do any or all of the following: (a) direct the person who occupies the premises concerned to allow access to the premises to the person who has left the personal property at the premises (and any police officer or person who is authorised by the order to accompany the person) to enable the removal of the property, (b) provide that the access to the premises concerned is to be at a time or times arranged between the occupier of the premises and a police officer (whether or not the order requires the person recovering the property to be accompanied by a police officer),Page 24 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 37 Part 8Content and effect of apprehended violence orders(c) require the person who has left the personal property at the premises to be accompanied by a police officer when removing the property from the premises, (d) provide that the person who has left the personal property at the premises may be accompanied by any other specified person, (e) specify the type or types of property to which the order relates. (3) A property recovery order does not authorise entry to any premises by means of force. (4) A property recovery order does not confer any right on a person to take property that the person does not own or have a legal right to possess even if the type of property is specified in the order. (5) A property recovery order in respect of personal property left by the defendant on premises may not be made in the absence of the defendant. (6) A person must not, without reasonable excuse, contravene a property recovery order or obstruct a person who is attempting to comply with a property recovery order. Maximum penalty: 50 penalty units. (7) The onus of proof of reasonable excuse in proceedings for an offence against subsection (6) lies on the person accused of the offence.Page 25 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 38 Part 9 Additional measures for support and protection of children and others in proceedingsPart 9 Additional measures for support and protection of children and others in proceedings 38 Apprehended violence orders made by court can also protect persons with whom person seeking protection has a domestic relationship (1) The power of a court under this Act to make an apprehended violence order for the protection of a person extends to authorise the making of such an order for the protection of a person with whom the person for whose protection the order was sought has a domestic relationship. (2) If the court makes an apprehended domestic violence order, or interim apprehended domestic violence order, for the protection of a person of or above 18 years of age, the court must include as a protected person under the order any child with whom the person of or above18 years of age has a domestic relationship unless the court is satisfied that there are good reasons for not doing so. The court is to give the reasons for not doing so. (3) For the avoidance of doubt, subsection (2) is subject to sections 41 and 42. (4) An apprehended violence order may be made for the protection of a child in accordance with this section even though an application for the order was not made by a police officer. 39 Apprehended violence order must be made on guilty plea or guilt finding for certain offences (1) If a person pleads guilty to, or is found guilty of, an offence against section 13 or a domestic violence offence (other than murder or manslaughter), the court hearing the proceedings must make an apprehended violence order for the protection of the person against whom the offence was committed whether or not an application for such an order had been made. (2) However, the court need not make an apprehended violence order if it is satisfied that it is not required (for example, because an apprehended violence order has already been made against the person). (3) A reference in this section to a court extends to the District Court when exercising jurisdiction apart from under section 91.Page 26 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 43 Part 9Additional measures for support and protection of children and others in proceedings(3) Without limiting subsection (2), in deciding whether or not to make or vary a final apprehended violence order or interim court order, the court is to: (a) consider whether contact between the protected person, or between the defendant, and any child of either of those persons is relevant to the making or variation of the order, and (b) have regard to any relevant parenting order of which the court has been informed. (4) A final apprehended violence order or interim court order, or a variation of such an order, is not invalid merely because of a contravention of this section. (5) In this section, relevant parenting order means a parenting order (within the meaning of Division 5 of Part VII of the Family Law Act 1975 of the Commonwealth) that relates to contact between the protected person, or between the defendant, and any child of either of those persons. 43 Non-inclusion of protected person’s residential address in application for apprehended domestic violence order or in apprehended domestic violence order (1) The address at which the protected person resides must not be stated in an application for an apprehended domestic violence order or interim apprehended domestic violence order unless: (a) where the protected person is of or above the age of 16 years— the protected person consents to the address being included in the application, or (b) where the application is made by a police officer—the police officer is satisfied that the defendant knows the address. (2) The address at which the protected person resides, or intends to reside, must not be stated in an apprehended domestic violence order or interim apprehended domestic violence order unless the court or authorised officer is satisfied that: (a) the defendant knows the address, or (b) it is necessary to state the address in order to achieve compliance with the order and the personal safety of the protected person would not be seriously threatened, or damage would not be likely to be caused to any property of the protected person, by stating the address, or (c) where the protected person is of or above the age of 16 years— the protected person consents to the address being stated in the order.Page 29 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 44 Part 9 Additional measures for support and protection of children and others in proceedings(3) A reference in this section to an apprehended domestic violence order or interim apprehended domestic violence order includes a reference to any other order relating to such an order. (4) In this section, court includes a Registrar. 44 Non-inclusion of health care provider’s residential address in application for apprehended personal violence order or in apprehended personal violence order (1) The address at which a protected health care provider resides must not be stated in any application for an apprehended personal violence order or interim apprehended personal violence order unless: (a) the protected health care provider consents to the address being included in the application, or (b) if the application is made by a police officer—the police officer is satisfied that the defendant knows the address. (2) The address at which a protected health care provider resides, or intends to reside, must not be stated in an apprehended personal violence order or interim apprehended personal violence order unless the court or authorised officer is satisfied that: (a) the defendant knows the address, or (b) it is necessary to state the address in order to achieve compliance with the order and the personal safety of the protected health care provider would not be seriously threatened, or damage would not be likely to be caused to any property of the protected health care provider, by stating the address, or (c) the protected health care provider consents to the address being stated in the order. (3) If the address at which a protected health care provider resides or intends to reside must not be stated in an application or order because of this section, the address at which the protected health care provider ordinarily provides health care services is to be stated instead in the application or order. (4) A reference in this section to an apprehended personal violence order or interim apprehended personal violence order includes a reference to any other order relating to such an order. (5) In this section: court includes a Registrar. protected health care provider means a person who is employed or engaged to provide any care, treatment, advice or service in respect of the physical or mental health of any protected person.Page 30 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 45 Part 9Additional measures for support and protection of children and others in proceedings45 Publication of names and identifying information about children and other persons involved in apprehended violence order proceedings (1) The name of a person, being a child: (a) for whose protection or against whom an apprehended violence order is sought in any apprehended violence order proceedings, or (b) who appears, or is reasonably likely to appear, as a witness before a court in any apprehended violence order proceedings, or (c) who is, or is reasonably likely to be, mentioned or otherwise involved in any apprehended violence order proceedings, must not be published or broadcast before the proceedings are commenced or after the proceedings have been commenced and before they are disposed of. (2) A court may direct that the name of a person (other than a child to whom subsection (1) applies): (a) for whose protection or against whom an apprehended violence order is sought in any apprehended violence order proceedings, or (b) who appears, or is reasonably likely to appear, as a witness before a court in any apprehended violence order proceedings, or (c) who is, or is reasonably likely to be, mentioned or otherwise involved in any apprehended violence order proceedings, must not be published or broadcast before the proceedings are commenced or after the proceedings have been commenced and before they are disposed of. (3) A person who publishes or broadcasts the name of a person in contravention of subsection (1) or in contravention of a direction under subsection (2) is guilty of an offence. Maximum penalty: Imprisonment for a period not exceeding 2 years, or 200 penalty units, or both (in the case of an individual) or 2,000 penalty units (in the case of a corporation). (4) This section does not prohibit: (a) the publication or broadcasting of an official report of the proceedings of a court that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section, or (b) the publication or broadcasting of the name of a person with the consent of the person or of the court. (5) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material:Page 31 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 49 Part 10 Applications for final apprehended violence orders and interim court orders and associated proceedings49 Circumstances in which police must make application for order (1) An application for an order must be made if a police officer investigating the matter concerned suspects or believes that: (a) a domestic violence offence or an offence against section 13 has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or (b) an offence under section 227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998 (but only in relation to a child) has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made, or (c) proceedings have been commenced against a person for an offence referred to in paragraph (a) or (b) against the person for whose protection an order would be made. (2) The application may be made by any police officer. (3) An application need not be made in the circumstances referred to in subsection (1) if an apprehended violence order is already in force for the protection of the person concerned or if an application has been made for a provisional order for the protection of the person. (4) An application need not be made in the circumstances referred to in subsection (1) if the person for whose protection an apprehended violence order would be made is at least 16 years of age at the time and the police officer investigating the matter believes: (a) that the person intends to make the application, or (b) that there is good reason not to make the application. (5) However, if the police officer investigating the matter believes that there is good reason not to make the application, the police officer must make a written record of the reason. (6) For the purposes of subsection (4), the reluctance of the person to make an application does not, on its own, constitute a good reason for a police officer not to make an application if the police officer reasonably believes that: (a) the person has been the victim of violence or there is a significant threat of violence to the person, or (b) the person has an intellectual disability and has no guardian.Page 34 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 50 Part 10Applications for final apprehended violence orders and interim court orders and associated proceedingsDivision 3 Commencement of application proceedings 50 Commencement of proceedings by application notice Application proceedings are to be commenced in a court by the issuing and filing of an application notice in accordance with this Division. 51 Commencement of proceedings by police officer If an application for an order is made by a police officer, the police officer may commence the proceedings by issuing an application notice and filing the notice in accordance with this Division. 52 Commencement of proceedings by protected person If an application for an order is made by a protected person, the person may commence the proceedings by issuing an application notice, signed by a registrar, and filing the notice in accordance with this Division. 53 Discretion to refuse to issue process in apprehended personal violence order matters (1) An authorised officer or a Registrar may, in accordance with this section, refuse to issue process where an application for an apprehended personal violence order is made unless the application was made by a police officer. (2) An authorised officer refuses to issue process by deciding not to issue a warrant referred to in section 88. (3) A Registrar refuses to issue process by deciding not to sign and file an application notice. (4) An authorised officer or a Registrar may refuse to issue process if satisfied that the application: (a) is frivolous, vexatious, without substance or has no reasonable prospect of success, or (b) could be dealt with more appropriately by mediation or other alternative dispute resolution. (5) Unless satisfied that there are compelling reasons for doing so, an authorised officer or a Registrar is not to refuse to issue process if the application discloses allegations of any of the following: (a) a personal violence offence, (b) an offence under section 13, (c) harassment relating to the protected person’s race, religion, homosexuality, transgender status, HIV/AIDS infection or disability.Page 35 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 54 Part 10 Applications for final apprehended violence orders and interim court orders and associated proceedings(6) In determining whether or not to issue process, the authorised officer or Registrar must take the following matters into account: (a) the nature of the allegations, (b) whether the matter is amenable to mediation or other alternative dispute resolution, (c) whether the parties have previously attempted to resolve the matter by mediation or other means, (d) the availability and accessibility of mediation or other alternative dispute resolution services, (e) the willingness and capacity of each party to resolve the matter otherwise than through an application for an apprehended personal violence order, (f) the relative bargaining powers of the parties, (g) whether the application is in the nature of a cross application, (h) any other matters that the authorised officer or Registrar considers relevant. (7) If the authorised officer or Registrar refuses to issue process under this section, the authorised officer or Registrar must record the reasons for doing so in writing. (8) If a Registrar refuses to accept an application notice for filing, the question of whether the application notice is to be accepted for filing is to be determined by the court on the application of the applicant. 54 Application notice to be for one matter only An application notice may not relate to more than one matter. 55 Service of application notice (1) An application notice issued by a police officer must be served by a police officer in accordance with the rules. (2) An application notice issued by a protected person must be served by a person authorised by the rules in accordance with the rules. (3) A copy of an application notice must be filed in the relevant court in accordance with the rules. 56 When proceedings commence Application proceedings are taken to have commenced on the date on which an application notice is filed.Page 36 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 67 Part 10Applications for final apprehended violence orders and interim court orders and associated proceedings67 Power to dispense with rules (1) In relation to particular application proceedings, the court may, if of the opinion that it is in the interests of justice to do so, dispense with or vary a requirement of the rules. (2) For the purposes of subsection (1), the court may make directions as to the conduct of application proceedings. (3) The power conferred by this section does not extend to any rule declared by the rules to be mandatory. 68 Power to stay proceedings (1) Subject to the rules, the court may at any time and from time to time, by order, stay any application proceedings before it, either permanently or until a specified day. (2) The power to stay proceedings includes power to order a stay of the enforcement of an order. 69 Arrest of defendant during proceedings (1) A Magistrate may, at any time when or after a matter is first before the court and before it is finally disposed of by the court, issue a warrant to arrest a defendant if the defendant fails to appear personally or to appear by an Australian legal practitioner or other representative and the Magistrate is satisfied that the defendant had notice of the date, time and place of the proceedings. (2) A Magistrate, Registrar or authorised officer before whom a defendant is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, issue a warrant: (a) committing the defendant to a correctional centre or other place of security, and (b) ordering the defendant to be brought before the court at the date, time and place specified in the order. (3) The Magistrate, Registrar or authorised officer must give notice of the date, time and place set to the applicant. 70 Witnesses and production of evidence The provisions of Part 3 of Chapter 4 of the Criminal Procedure Act 1986 apply, with any necessary modifications, to application proceedings in the same way as they apply to proceedings for summary offences under that Act.Page 39 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 71 Part 10 Applications for final apprehended violence orders and interim court orders and associated proceedings71 Warrants of arrest and warrants of commitment The provisions of Part 4 of Chapter 4 of the Criminal Procedure Act 1986 apply, with any necessary modifications, to warrants of arrest, or warrants of commitment, issued under this Act in the same way as they apply to warrants of arrest or warrants of commitment issued under that Act. Division 5 Variation or revocation of final apprehended violence orders or interim court orders 72 Application for variation or revocation of final apprehended violence orders (1) An application may, at any time, be made to a court for the variation or revocation of a final apprehended violence order or interim court order. (2) An application for variation or revocation may be made only by: (a) the protected person (whether or not the protected person made the application for the original order) or, if there is more than one protected person, by one or more of the protected persons, or (b) a police officer, or (c) the defendant. (3) Despite subsection (2), an application for variation or revocation of a final apprehended violence order or interim court order must be made by a police officer if the protected person or one of the protected persons under the order is a child at the time of the application. (4) The application must set out the grounds on which the application is made and, in the case of a variation, the nature of the variation sought. This subsection does not limit the powers of the court. 73 Variation or revocation of final apprehended violence orders and interim court orders (1) The court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke a final apprehended violence order or interim court order. (2) In particular, a final apprehended violence order or interim court order may be varied under this section in any one or more of the following ways: (a) by extending or reducing the period during which the order is to remain in force, (b) by amending or deleting any prohibitions or restrictions specified in the order,Page 40 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 74 Part 10Applications for final apprehended violence orders and interim court orders and associated proceedings(c) by specifying additional prohibitions or restrictions in the order. (3) The court may decline to hear an application for variation or revocation of a final apprehended violence order or interim court order if the court is satisfied that there has been no change in the circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order. (4) A final apprehended violence order or interim court order is not to be varied or revoked on the application of the defendant unless notice of the application has been served on each protected person to whom the order relates. (5) A final apprehended violence order or interim court order is not to be varied or revoked on the application of the applicant for the original order or protected person unless notice of the application has been served on the defendant. (6) Notice of an application must be served personally or in such other manner as the court hearing the application directs. (7) Despite subsection (5), the court may make an order extending the period during which the final apprehended violence order or interim court order is to remain in force without notice of the relevant application having been served on the defendant, if the applicant lodged the application before the day on which the apprehended violence order or interim court order is due to expire. (8) If an application for the extension of a final apprehended violence order or interim court order is made before the order expires, the order is taken to continue in force until the application is dealt with by the court. (9) Unless sooner revoked, an order extended under subsection (7) ceases to have effect 21 days after the order extending it is made or on an earlier date specified in the order extending it. However, further orders may be made from time to time under that subsection before the extended order ceases to have effect. 74 Variation or revocation of final apprehended violence orders and interim court orders where more than one protected person (1) This section applies to a final apprehended violence order or interim court order if there is more than one protected person under the order. (2) An order to which this section applies may be varied or revoked in its application to all of the protected persons or in relation to any one or more of the protected persons.Page 41 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 78 Part 10 Applications for final apprehended violence orders and interim court orders and associated proceedings78 Orders made with consent of parties (1) A court may make a final apprehended violence order, or an interim court order, without being satisfied as to the matters that are prerequisites to the making of those orders if the protected person and the defendant consent to the making of the order. (2) Such an order may be made whether or not the defendant admits to any or all of the particulars of the application. (3) Before making such an order, the court may conduct a hearing in relation to the particulars of the application but only if: (a) the order to be made by the court is a final apprehended violence order, and (b) the court is of the opinion that the interests of justice require it to conduct the hearing. 79 Duration of final apprehended violence orders (1) A final apprehended violence order remains in force for such period as is specified in the order by the court. (2) The period specified in the order by the court is to be as long as is necessary, in the opinion of the court, to ensure the safety and protection of the protected person. (3) If the court fails to specify a period in the order, the order remains in force for a period of 12 months after the date that the order is made. (4) This section is subject to section 73 (Variation or revocation of final apprehended violence orders and interim court orders). 80 Enforcement of orders for payment of money An order for the payment of money by a party to application proceedings (including an order as to payment of costs) may be enforced in a court of competent jurisdiction as if it were a debt due to the person to whom the money is ordered to be paid. 81 Concurrent criminal proceedings A court may make an apprehended violence order against a defendant even though proceedings have been commenced against the defendant for an offence arising out of the same conduct as that out of which the application for the order arose.Page 44 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 82 Part 10Applications for final apprehended violence orders and interim court orders and associated proceedings82 Arrangements regarding classification of orders (1) If a court is at any time unable to determine whether to make an apprehended domestic violence order or an apprehended personal violence order, it may make whichever apprehended violence order it thinks fit. (2) If a court is at any time unable to determine whether an apprehended violence order was made, or should have been made, as an apprehended domestic violence order or apprehended personal violence order, it may treat the order as having been made as whichever type of apprehended violence order it thinks fit. (3) If an apprehended violence order is made or treated as having been made as an apprehended domestic violence order or an apprehended personal violence order but should have been made as another type of apprehended violence order, the order is not invalid on that ground and is taken to have been made as that other type of apprehended violence order. 83 Application of Bail Act 1978 If an application for a final apprehended violence order or interim court order is made, the Bail Act 1978 applies to the defendant as if: (a) where the defendant is arrested pursuant to a warrant issued under this Act or first appears before a court in answer to a direction to appear given under this Act—the defendant were an accused person charged with an offence, and (b) proceedings in respect of the application or order were proceedings in respect of an offence to which section 8 of the Bail Act 1978 applies. Division 7 Appeals 84 Review and appeal provisions concerning making, variation or revocation of apprehended violence orders (1) An application may be made under Part 2 of the Crimes (Appeal and Review) Act 2001 by the defendant for the annulment of an apprehended violence order made by the Local Court or the Children’s Court in the same way as an application may be made under that Part by a defendant for the annulment of a conviction or sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (2) An appeal may be made to the District Court: (a) by the defendant against the making of an apprehended violence order by the Local Court or the Children’s Court, orPage 45 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 85 Part 10 Applications for final apprehended violence orders and interim court orders and associated proceedings(b) by the applicant for an order or a defendant against the awarding of costs under section 99 of this Act, or (c) by a party to an apprehended violence order against the variation or revocation of the order by the Local Court or the Children’s Court, or (d) by a party to an apprehended violence order against a refusal by the Local Court or the Children’s Court to vary or revoke the order. (3) An appeal under subsection (2): (a) may be made under Part 3 of the Crimes (Appeal and Review) Act 2001 in the same way as an application may be made under that Part by a defendant against a conviction or sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986, and (b) may be made only by leave of the District Court in the case of an appeal against the making of an apprehended violence order that was made with the consent of the defendant. (4) The Crimes (Appeal and Review) Act 2001 applies to an application or appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act. (5) For the purposes of this section and the Crimes (Appeal and Review) Act 2001, an order made by a Registrar of a court is taken to have been made by the court. (6) In this section, party to an apprehended violence order means: (a) the protected person (whether or not the applicant), but only if the protected person is of or above the age of 16 years, or (b) if the applicant was a police officer, that or any other police officer, or (c) the defendant. 85 Presumption against stay of order (1) The lodging of a notice of appeal under section 84 does not have the effect of staying the operation of the order concerned. (2) The original court may, on application by the defendant, stay the operation of the order, if satisfied that it is safe to do so, having regard to the need to ensure the safety and protection of the protected person or any other person. (3) A stay on the operation of the order continues until the appeal is finally determined, subject to any order or direction of the District Court.Page 46 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 88 Part 11Warrants and powers of police to detain defendantsPart 11 Warrants and powers of police to detain defendants 88 Warrant for arrest of defendant in final apprehended violence order matters (1) If an application for a final apprehended violence order is made, an authorised officer may issue a warrant for the arrest of the defendant. (2) The authorised officer may issue a warrant for the arrest of the defendant even though the defendant is not alleged to have committed an offence. (3) The authorised officer must issue a warrant for the arrest of the defendant if it appears to the authorised officer that the personal safety of the person for whose protection the order is sought will be put at risk unless the defendant is arrested for the purpose of being brought before the court. (4) A warrant may not be executed more than 12 months after the date on which it is issued, unless the court otherwise orders before the end of the 12-month period. 89 Detention of defendant for making and service of provisional order (1) If a police officer makes or is about to make an application for a provisional order, the police officer may direct the person against whom the order is sought to remain at the scene of the incident concerned or, in a case where the person has left the scene of the incident, at another place where a police officer locates the person. (2) If the person refuses to remain, the police officer may arrest and detain the person at the scene of the incident or other place, or arrest and take the person to a police station and there detain the person, until the provisional order is made and served. 90 Detention of defendant for service of order or variation (1) A police officer who reasonably suspects that a person is the defendant in relation to an apprehended violence order may direct the person to remain where the person is for the purpose only of serving on the person a copy of the order, or a variation of the order, that is required to be served personally under this Act.Page 49 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 90 Part 11 Warrants and powers of police to detain defendants(2) If the person refuses to remain, the police officer may arrest and detain the person at the same place, or arrest and take the person to a police station and there detain the person, for the purpose only of serving the document concerned on the person. Note. Division 1A of Part 3 of the Law Enforcement (Powers and Responsibilities) Act 2002 enables a police officer to require the name of a person who the police officer suspects on reasonable grounds may be the defendant in relation to an apprehended violence order. Section 87 of that Act provides that if a police officer enters a dwelling under a power conferred by that Act and believes on reasonable grounds that a dangerous article or dangerous implement that may have been used or may be used to commit a domestic violence offence is in the dwelling, the police officer may search for the article or implement and seize and detain it.Page 50 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 91 Part 12Jurisdiction of courtsPart 12 Jurisdiction of courts 91 Courts authorised to make orders and determine applications (1) The following courts have jurisdiction (in the circumstances specified) to make orders and determine applications under this Act: (a) the Local Court—except where the defendant is less than 18 years of age at the time the application is made, (b) the Children’s Court—where the defendant is less than 18 years of age at the time the application is made, (c) the District Court—where an application by or on behalf of the person for whose protection an apprehended violence order is sought has been dismissed by the Local Court or the Children’s Court. (2) The Local Court has jurisdiction to vary or revoke an order made by it or any other court (except where the defendant is less than 18 years of age at the time the application for the variation or revocation is made). (3) The Children’s Court has jurisdiction to vary or revoke an order made by it irrespective of the age of the defendant at the time the application for variation or revocation is made. (4) An order made by the Local Court for the purposes of this Act is not invalid on the ground that it was made in the mistaken belief that the defendant was of or above 18 years of age at the time the application was made. (5) This section does not apply to provisional orders. 92 Jurisdiction of District Court to issue AVO following dismissal of application by Local Court or Children’s Court (1) The District Court has original jurisdiction to issue an apprehended violence order, where an application by or on behalf of the person for whose protection an order has been sought has been dismissed by the Local Court or the Children’s Court. (2) An application by or on behalf of a person for whose protection an apprehended violence order is sought from the District Court must be made within 28 days after the date the Local Court or the Children’s Court dismissed the earlier application. (3) The District Court may, without further hearing, admit in evidence any evidence that was admitted in the proceedings before the Local Court or Children’s Court. (4) Further evidence may be given, but only with the leave of the District Court.Page 51 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 97 Part 13 Registration of external protection orders(a) vary the period during which the order has effect in its operation in New South Wales, (b) make such other adaptations or modifications to the order as the Magistrate or Children’s Magistrate considers necessary or desirable for its effective operation in New South Wales. (3) The Registrar of the appropriate court must register an external protection order that has been adapted or modified under subsection (2). (4) On registering an external protection order, the Registrar of the appropriate court must provide the Commissioner of Police with a copy of the registered external protection order. (5) Notice of the registration of an external protection order is not to be served on the person against whom the order has been made unless the person who applied for that registration has consented to that service. (6) A registered external protection order is registered for the period during which the order, or the order as adapted or modified, is in force. 97 Effect of registration of external protection order (1) An external protection order that has been registered under section 96: (a) has the same effect as an apprehended violence order made under this Act, and (b) may be enforced against a person as if it were an apprehended violence order which had been made under this Act and as if a copy of the order had been served on that person in accordance with section 77. (2) The variation or revocation of an external protection order by a court of the State, Territory or country in which it was made after the order has been registered under section 96 has no effect in New South Wales. (3) An external protection order that has been registered under section 96 (and anything done to effect the registration of the order) is not invalid on the ground that the order has, due to the age of the defendant at the time the application was made, been registered in the wrong court. 98 Variation etc of registered external protection orders (1) In this section, prescribed person means: (a) a person for whose protection a registered external protection order has been made, or (b) a person against whom a registered external protection order has been made, or (c) a police officer, orPage 54 Crimes (Domestic and Personal Violence) Act 2007 No 80 Section 98 Part 13Registration of external protection orders(d) a person to whom the appropriate court in which the external protection order has been registered has granted leave to make an application under this section. (2) A prescribed person may apply to the appropriate court for one or more of the following: (a) the variation of a registered external protection order as it applies in New South Wales, (b) the extension or reduction of the period during which a registered external protection order has effect in its operation in New South Wales, (c) the revocation of the registration of a registered external protection order. (3) The appropriate court may determine the application by doing one or more of the following: (a) by varying the order as it applies in New South Wales, (b) by extending or reducing the period during which the order has effect in its operation in New South Wales, (c) by revoking the registration. (4) A registered external protection order is not to be varied or revoked on the application of a person referred to in subsection (1) (a), (c) or (d) unless notice of the application has been served on the person against whom the order has been made. (5) A registered external protection order is not to be varied or revoked on the application of the person against whom the order has been made unless notice of the application has been served on the person for whose protection the order has been made. (6) Notice of an application is to be served personally or in such other manner as the appropriate court hearing the application directs. (7) A registered external protection order varied under subsection (3) (a) or (b) is registered for the period during which the order, as varied, has effect in its operation in New South Wales.Page 55 Crimes (Domestic and Personal Violence) Act 2007 No 80Section 99 Part 14 MiscellaneousPart 14 Miscellaneous 99 Costs (1) A court may, in apprehended violence order proceedings, award costs to the applicant for the order or decision concerned or the defendant in accordance with this section. (2) Costs are to be determined in accordance with Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986. (3) A court is not to award costs against an applicant who is the person for whose protection an apprehended domestic violence order is sought unless satisfied that the application was frivolous or vexatious. (4) A court is not to award costs against a police officer who makes an application unless satisfied that the police officer made the application knowing it contained matter that was false or misleading in a material particular. (5) Subsections (3) and (4) have effect despite any other Act or law. (6) The following provisions have effect in relation to the District Court: (a) subsections (1) and (2) apply to the District Court only when it is exercising original jurisdiction under section 92, (b) Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986, in its application to the District Court when exercising that jurisdiction, applies to the District Court in the same way as it applies to the Local Court (and with any prescribed modifications), (c) this section does not affect the operation of any provisions of the Criminal Procedure Act 1986 or any other Act or law relating to the payment of costs in proceedings in an appeal to the District Court. 100 Parts 2 and 3 of Crimes (Appeal and Review) Act 2001 Except as expressly provided by this Act, nothing in this Act affects the operation that Parts 2 and 3 of the Crimes (Appeal and Review) Act 2001 would have if this Act had not been enacted. 101 Regulations The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.Page 56 Crimes (Domestic and Personal Violence) Act 2007 No 80 Savings, transitional and other provisions Schedule 1(3) An interim order made by a court or registrar under the old Part 15A and in force immediately before the repeal of that Part by this Act is taken to be an interim court order made under this Act. (4) A telephone interim order made under the old Part 15A and in force immediately before the repeal of that Part by this Act is taken to be a provisional order made under this Act. (5) An external protection order registered under Division 10 of the old Part 15A is taken to have been registered under Part 13 of this Act. (6) Any order taken by this clause to have been made under this Act has effect for the same period as it would have had under the provisions of the old Part 15A but may be varied or revoked in accordance with this Act. 4 Pending applications An application for an order under the old Part 15A that has not been determined before the repeal of that Part by this Act is taken to be an application for the same type of order under this Act. 5 References to repealed offences A reference in this Act to section 13 of this Act includes a reference to sections 545AB and 562AB of the Crimes Act 1900 (as in force before their repeal). 6 Recording of domestic violence offences Section 12 extends to: (a) enabling the making of an application to record a domestic violence offence occurring before the commencement of that section, and (b) authorising the recording of domestic violence offences occurring before the commencement of that section.Page 59 Crimes (Domestic and Personal Violence) Act 2007 No 80 Schedule 2 Amendment of other Acts and regulationsSchedule 2 Amendment of other Acts and regulations (Section 103) 2.1 Bail Act 1978 No 161 [1] Section 4 Definitions Omit “Part 15A of the Crimes Act 1900” from the definition of domestic violence offence in section 4 (1). Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”. [2] Section 9A Exception from presumption in favour of bail—certain domestic violence offences and offences of contravening apprehended domestic violence orders Insert “section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or” before “section 545AB” in section 9A (1) (b) (ii). [3] Section 9A (3), definition of “apprehended domestic violence order” Omit the definition. Insert instead: apprehended domestic violence order has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007. [4] Section 9A (3), definitions of “apprehended violence order” and “personal violence offence” Omit “Part 15A of the Crimes Act 1900” wherever occurring. Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”. [5] Section 48 Provisions respecting review of bail decisions Omit “or a complaint for an apprehended violence order under Part 15A of the Crimes Act 1900” from section 48 (1) (a) (iii). Insert instead “or an application for an order under the Crimes (Domestic and Personal Violence) Act 2007”. 2.2 Bail Regulation 1999 [1] Clause 3 Definitions Omit the definition of apprehended domestic violence order from clause 3 (1). Insert instead: apprehended domestic violence order has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007.Page 60 Crimes (Domestic and Personal Violence) Act 2007 No 80 Amendment of other Acts and regulations Schedule 2[2] Clause 3 (1), definition of “bail decision” Omit the definition. Insert instead: bail decision, in respect of a domestic violence offence, includes the following: (a) a bail decision in respect of an application for an apprehended domestic violence order, if the defendant is (by section 83 of the Crimes (Domestic and Personal Violence) Act 2007) taken to be an accused person charged with an offence, (b) a bail decision in respect of an appeal against an apprehended domestic violence order, if the defendant is (by section 85 of that Act) taken to be an accused person who is in custody. [3] Clause 3 (1), definition of “domestic violence offence” Omit “Part 15A of the Crimes Act 1900”. Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”. [4] Clause 11 Notice of bail decisions in cases of alleged sexual assault and personal violence offences Omit “section 562AB” from paragraph (c) of the definition of personal violence offence in clause 11 (4). Insert instead “section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB or 562AB”. [5] Clause 11 (4), definition of “personal violence offence” Omit “section 562I” from paragraph (d). Insert instead “section 14 of the Crimes (Domestic and Personal Violence) Act 2007 or section 562ZG or 562I (as in force before its substitution by the Crimes Amendment (Apprehended Violence) Act 2006)”. [6] Clause 11 (4), definition of “victim” Insert “section 14 of the Crimes (Domestic and Personal Violence) Act 2007 or” before “section 562ZG”. [7] Clause 11 (5) (c) Omit “Part 15A of the Crimes Act 1900”. Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”.Page 61 Crimes (Domestic and Personal Violence) Act 2007 No 80 Schedule 2 Amendment of other Acts and regulations[3] Section 76 Home detention not available for certain offences Insert “section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or” before “section 545AB” in section 76 (f). [4] Section 77 Home detention not available for offenders with certain history Insert “section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or” before “section 545AB” in section 77 (1) (b). [5] Section 77 (1) (e) Omit “within the meaning of Part 15A of the Crimes Act 1900”. Insert instead “within the meaning of the Crimes (Domestic and Personal Violence) Act 2007”. 2.9 Criminal Procedure Act 1986 No 209 [1] Section 3 Definitions Omit the definition of apprehended violence order from section 3 (1). Insert instead: apprehended violence order has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007. [2] Section 268 Maximum penalties for Table 2 offences Insert “section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or” before “section 545AB” in section 268 (2) (f). [3] Section 279 Compellability of spouses to give evidence in certain proceedings Omit “Part 15A of the Crimes Act 1900” from section 279 (1) (b). Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”. [4] Section 294B Giving of evidence by complainant in prescribed sexual offence proceedings—alternative arrangements Insert after section 294B (1): (1A) This section applies (with any necessary modifications) to the giving of evidence in apprehended violence order proceedings (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) by a protected person in the same way as it applies to the giving of evidence in criminal proceedings by a complainant but only if:Page 64 Crimes (Domestic and Personal Violence) Act 2007 No 80 Amendment of other Acts and regulations Schedule 2(a) the defendant in the proceedings is a person who is charged with a prescribed sexual offence, and (b) the protected person is the alleged victim of the offence. [5] Section 306ZK Vulnerable persons have a right to presence of a supportive person while giving evidence Omit section 306ZK (1) (c). Insert instead: (c) apprehended violence order proceedings within the meaning of the Crimes (Domestic and Personal Violence) Act 2007, and [6] Section 348 Offences in respect of which an intervention program may be conducted Omit section 348 (2) (c). Insert instead: (c) an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB or 562AB of the Crimes Act 1900 (Stalking or intimidation with intent to cause fear of physical or mental harm), [7] Schedule 1 Indictable offences triable summarily Omit the heading to Part 1 of Table 2. Insert instead “Part 1 Offences against the person under Crimes Act 1900 or Crimes (Domestic and Personal Violence) Act 2007”. [8] Schedule 1, Part 1 of Table 2 Insert “section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or” before “section 545AB” in clause 2. 2.10 Criminal Procedure Regulation 2005 [1] Clause 19A Community conference intervention program Omit “Part 15A of the Crimes Act 1900” from clause 19A (3) (a). Insert instead “the Crimes (Domestic and Personal Violence) Act 2007. [2] Section 26 Issue of subpoenas in AVO proceedings Omit “Part 15A of the Crimes Act 1900”. Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”.Page 65 Crimes (Domestic and Personal Violence) Act 2007 No 80 Schedule 2 Amendment of other Acts and regulations2.11 Director of Public Prosecutions Act 1986 No 207 [1] Section 3 Definitions Omit “Part 15A of the Crimes Act 1900” from the definition of prosecutor in section 3 (1). Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”. [2] Section 20A Proceedings for order under Crimes (Domestic and Personal Violence) Act 2007 Omit “Part 15A of the Crimes Act 1900” wherever occurring in section 20A (1) and (3). Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”. 2.12 Drug Court Act 1998 No 150 Section 18E Assessment of eligibility and suitability by the multi-disciplinary team Omit “Part 15A of the Crimes Act 1900” from section 18E (2) (c). Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”. 2.13 Explosives Act 2003 No 39 [1] Section 13 Commissioner of Police to report on licences Omit section 13 (1) (d) and (e). Insert instead: (d) whether the applicant or licence holder has a history of violence or threats of violence, with violence including behaviour referred to in section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (Stalking or intimidation with intent to cause fear of physical or mental harm), (e) whether there is an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007 in force with respect to the applicant or licence holder, [2] Section 22 Special provision—suspension or cancellation of licences where suspicions of violence Omit “Part 15A of the Crimes Act 1900” from section 22 (4). Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”.Page 66 Crimes (Domestic and Personal Violence) Act 2007 No 80 Amendment of other Acts and regulations Schedule 2[4] Section 81 Definitions Omit the section. Insert instead: 81 Definitions In this Part: domestic violence offence has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007. occupier of a dwelling means a person immediately entitled to possession of the dwelling. [5] Section 87 Search and seizure powers Insert “or dangerous implement” after “dangerous article” wherever occurring. [6] Section 211 Application of Division Omit “confiscated under section 28” from section 211 (1). Insert instead “seized or confiscated under this Act”. [7] Section 213 Appeals to Local Court against refusals to return seized or confiscated dangerous articles or dangerous implements Omit “seized dangerous article or confiscated dangerous implement” from section 213 (1). Insert instead “seized or confiscated dangerous article or dangerous implement”. 2.16 Legal Profession Act 2004 No 112 Section 353 Application for assessment of party/party costs Omit “Part 15A of the Crimes Act 1900” from section 353 (4). Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”. 2.17 Local Courts Act 1982 No 164 Section 36 Proceedings to which Part does not apply Insert after section 36 (1) (b): (c) proceedings with respect to any matter for which jurisdiction is conferred on the Local Court under the Crimes (Domestic and Personal Violence) Act 2007,Page 69 Crimes (Domestic and Personal Violence) Act 2007 No 80 Schedule 2 Amendment of other Acts and regulations2.18 Victims Support and Rehabilitation Act 1996 No 115 [1] Schedule 1 Compensable injuries Omit clause 7A (1) (b). Insert instead: (b) without limiting paragraph (a), injury arising from the intimidation or stalking of a person (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) in apparent contravention of an apprehended violence order in force under that Act. [2] Dictionary Omit paragraph (f) of the definition of sexual assault and domestic violence. Insert instead: (f) the intimidation or stalking of a person (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) in apparent contravention of an apprehended violence order in force under that Act, or [3] Dictionary, definition of “sexual assault and domestic violence” Omit “Part 15A of the Crimes Act 1900” from paragraph (g) of the definition. Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”. 2.19 Weapons Prohibition Act 1998 No 127 [1] Section 4 Definitions Omit paragraphs (a) and (b) of the definition of apprehended violence order in section 4 (1). Insert instead: (a) a final apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007, or [2] Section 4 (1), definition of “interim apprehended violence order” Omit paragraph (a) of the definition. Insert instead: (a) an interim court order under the Crimes (Domestic and Personal Violence) Act 2007, or [3] Section 16 Suspension of permit Omit “Part 15A of the Crimes Act 1900” from section 16 (2). Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”.Page 70 Crimes (Domestic and Personal Violence) Act 2007 No 80 Amendment of other Acts and regulations Schedule 2[4] Section 16 (2) Omit “that Part”. Insert instead “that Act”. 2.20 Young Offenders Act 1997 No 54 Section 8 Offences covered by Act Omit “Part 15A (Apprehended violence) of the Crimes Act 1900” from section 8 (2) (e). Insert instead “the Crimes (Domestic and Personal Violence) Act 2007”.[Agreement in principle speech made in Legislative Assembly on 16 November 2007 Second reading speech made in Legislative Council on 29 November 2007] BY AUTHORITY Page 71