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This is a Bill, not an Act. For current law, see the Acts databases.
Crimes and Firearms Legislation
Amendment (Apprehended Violence
Orders) Bill 2004
No , 2004
A Bill for
An Act to amend the Crimes Act 1900 to create an offence of making vexatious
or frivolous applications for apprehended violence orders; to amend the
Firearms Act 1996 with respect to the effect of apprehended violence orders; and
for other purposes.
Crimes and Firearms Legislation Amendment (Apprehended Violence
Clause 1 Orders) Bill 2004
1
The Legislature of New South Wales enacts:
2
1 Name of Act
3
This Act is the Crimes and Firearms Legislation Amendment
4
(Apprehended Violence Orders) Act 2004.
5
2 Commencement
6
This Act commences on the date of assent.
7
3 Amendment of Crimes Act 1900 No 40
8
The Crimes Act 1900 is amended as set out in Schedule 1.
9
4 Amendment of Firearms Act 1996 No 46
10
The Firearms Act 1996 is amended as set out in Schedule 2.
Page 2
Crimes and Firearms Legislation Amendment (Apprehended Violence
Orders) Bill 2004
Amendment of Crimes Act 1900 Schedule 1
Schedule 1 Amendment of Crimes Act 1900 1
2
(Section 3)
3
[1] Section 562AEA
4
Insert after section 562AE:
5
562AEA Obligation to refuse to make order in certain ADVO matters
6
A court must refuse to make an apprehended domestic
7
violence order if the court is satisfied that:
8
(a) the defendant was not advised of the particulars of the
9
complaint before the complaint was made, or
10
(b) the defendant was not given an opportunity to be
11
officially interviewed regarding the particulars of the
12
complaint before the complaint was made, or
13
(c) the particulars of the complaint were not adequately
14
investigated before the complaint was made, or
15
(d) the complaint is frivolous, vexatious or without
16
substance.
17
[2] Section 562AFA
18
Insert after section 562AF:
19
562AFA Obligation to refuse to issue process in certain ADVO matters
20
An authorised justice must refuse to issue process where a
21
complaint for an apprehended domestic violence order is
22
made if the authorised justice is satisfied that the complaint is
23
frivolous, vexatious or without substance.
24
[3] Section 562AIA
25
Insert after section 562AI:
26
562AIA Obligation to refuse to make order in certain APVO matters
27
A court must refuse to make an apprehended personal
28
violence order if the court is satisfied that:
29
(a) the defendant was not advised of the particulars of the
30
complaint before the complaint was made, or
Page 3
Crimes and Firearms Legislation Amendment (Apprehended Violence
Orders) Bill 2004
Schedule 1 Amendment of Crimes Act 1900
1
(b) the defendant was not given an opportunity to be
2
officially interviewed regarding the particulars of the
3
complaint before the complaint was made, or
4
(c) the particulars of the complaint were not adequately
5
investigated before the complaint was made, or
6
(d) the complaint is frivolous, vexatious or without
7
substance.
8
[4] Section 562AK Discretion to refuse to issue process in APVO
9
matters
10
Omit "is frivolous, vexatious, without substance or" from section
11
562AK (3).
12
[5] Section 562AKA
13
Insert after section 562AK:
14
562AKA Obligation to refuse to issue process in certain APVO matters
15
An authorised justice must refuse to issue process where a
16
complaint for an apprehended personal violence order is made
17
if the authorised justice is satisfied that the complaint is
18
frivolous, vexatious or without substance.
19
[6] Section 562BA Orders made with consent of parties
20
Insert after section 562BA (3):
21
(4) A court must not make such an order unless the court is
22
satisfied that, before giving his or her consent to the making
23
of the order, the defendant was given a written statement
24
explaining the consequences of the making of the order on the
25
defendant's ability to possess a firearm, his or her ability to be
26
issued with or hold a licence or permit under the Firearms
27
Act 1996 and his or her eligibility to hold certain employment.
28
[7] Section 562BB Interim court orders
29
Insert after section 562BB (6):
30
(7) A court must refuse to make an order under section 562AE or
31
562AI confirming an interim order if the court is satisfied
32
that:
Page 4
Crimes and Firearms Legislation Amendment (Apprehended Violence
Orders) Bill 2004
Amendment of Crimes Act 1900 Schedule 1
1
(a) the defendant was not advised of the particulars of the
2
matter before the defendant was required to appear at
3
the further hearing of the matter by the court, or
4
(b) the defendant was not given an opportunity to be
5
officially interviewed regarding the particulars of the
6
matter before the defendant was required to appear at
7
the further hearing of the matter by the court, or
8
(c) the particulars of the matter were not adequately
9
investigated before the defendant was required to
10
appear at the further hearing of the matter by the court,
11
or
12
(d) the matter is frivolous, vexatious or without substance.
13
[8] Section 562DB
14
Insert after section 562DA:
15
562DB Defendant must be told how long AVO applies
16
A court that makes an order must ensure that the defendant is
17
given a written statement explaining the following:
18
(a) the period for which the order remains in force,
19
(b) that the order will remain in force for that period unless
20
it is revoked, even if the protected person is no longer
21
fearful of the defendant,
22
(c) that the defendant has the right to apply to the court for
23
variation or revocation of the order,
24
(d) the procedure for applying to the court for variation or
25
revocation of the order,
26
(e) that if the defendant is successful in having the order
27
revoked, the defendant will not be required to pay court
28
costs or any other participant's costs,
29
(f) that, unless the order is revoked, it will have the effect
30
of denying the defendant the right to be issued with
31
certain licences, permits or authorities in relation to
32
firearms for a period of up to 10 years.
Page 5
Crimes and Firearms Legislation Amendment (Apprehended Violence
Orders) Bill 2004
Schedule 1 Amendment of Crimes Act 1900
1
[9] Section 562F Variation or revocation of court orders
2
Insert after section 562F (8):
3
(9) If an order is revoked under this section, no court costs (such
4
as any application fee or other court fee) are payable by the
5
defendant in relation to the revocation of the order and no
6
order for costs can be made against the defendant in relation
7
to the revocation.
8
[10] Section 562FAA
9
Insert after section 562F:
10
562FAA Obligation to return firearms licence or permit if AVO revoked
11
(1) This section applies if a court made an order under
12
section 562D (3) requiring a person to surrender to the
13
Commissioner of Police any licence or permit under the
14
Firearms Act 1996 when it made an apprehended violence
15
order.
16
(2) If a court revokes an apprehended violence order it must also
17
make an order requiring the Commissioner of Police to return
18
to the defendant any licence or permit under the Firearms
19
Act 1996 surrendered in accordance with the court's order
20
when it made the apprehended violence order.
21
[11] Section 562XA
22
Insert after section 562X:
23
562XA Offences relating to making of complaints for AVOs and
24
requests for interim AVOs
25
(1) A person must not make a complaint for an apprehended
26
violence order, or a request for an interim apprehended
27
violence order, that is frivolous, vexatious or without
28
substance.
29
Maximum penalty: 20 penalty units.
30
(2) A person must not make more than one complaint for an
31
apprehended violence order, or a request for an interim
32
apprehended violence order, where those complaints,
33
requests, or complaints and requests, together are vexatious.
34
Maximum penalty: 20 penalty units.
Page 6
Crimes and Firearms Legislation Amendment (Apprehended Violence
Orders) Bill 2004
Amendment of Crimes Act 1900 Schedule 1
1
(3) A person (the applicant) must not make a complaint for an
2
apprehended violence order, or a request for an interim
3
apprehended violence order, against another person unless the
4
applicant in fact fears:
5
(a) the commission by the other person of a personal
6
violence offence against the applicant, or
7
(b) the engagement of the other person in conduct
8
amounting to harassment or molestation of the
9
applicant, or
10
(c) the engagement of the other person in conduct in which
11
the other person intimidates the applicant or a person
12
with whom the applicant has a domestic relationship or
13
stalks the applicant.
14
Maximum penalty: 20 penalty units.
15
(4) A person must not make a statement in a complaint for an
16
apprehended violence order, or in a request for an interim
17
apprehended violence order:
18
(a) that the person knows is false or misleading in a
19
material particular, or
20
(b) that the person knows omits any matter or thing without
21
which the statement is misleading in a material
22
particular.
23
Maximum penalty: 20 penalty units.
24
(5) In determining the penalty to be imposed for an offence under
25
this section, the court may have regard to the effect that the
26
application for an apprehended violence order or the request
27
for an interim apprehended violence order, and the hearing of
28
that application or that request, had on the defendant's life,
29
employment, reputation, rights and liberties. This does not
30
limit the other matters to which the court may have regard.
Page 7
Crimes and Firearms Legislation Amendment (Apprehended Violence
Orders) Bill 2004
Schedule 2 Amendment of Firearms Act 1996
Schedule 2 Amendment of Firearms Act 1996 1
2
(Section 4)
3
[1] Section 11 General restrictions on issue of licences
4
Omit section 11 (5) (c). Insert instead:
5
(c) is subject to an apprehended violence order, unless a
6
court has made an order under section 25A that the
7
apprehended violence order is to be disregarded for this
8
purpose from the time specified in the further order, or
9
(c1) has, at any time within 10 years before the application
10
for the licence was made, been both:
11
(i) subject to an apprehended violence order (other
12
than an order that has been revoked), and
13
(ii) the holder of a licence or permit under this Act or
14
the Firearms Act 1989,
15
unless a court has made a further order under
16
section 25A that the apprehended violence order is to be
17
disregarded for this purpose from the time specified in
18
the further order, or
19
[2] Section 23
20
Omit the section. Insert instead:
21
23 Court may suspend licence on making of interim apprehended
22
violence order
23
(1) A court that makes an interim apprehended violence order
24
against a person may order that any licence that authorises the
25
person to possess or use a firearm is suspended (a suspension
26
order).
27
(2) A suspension order may be made at the time of the making of
28
the interim apprehended violence order or at a later time while
29
the interim apprehended violence order remains in force.
30
(3) The court must not make such a suspension order unless the
31
court has had regard to the nature of the matters that gave rise
32
to the interim apprehended violence order and, having done
33
so, is satisfied that the person's licence should be suspended.
Page 8
Crimes and Firearms Legislation Amendment (Apprehended Violence
Orders) Bill 2004
Amendment of Firearms Act 1996 Schedule 2
1
(4) If a suspension order is made, the licence concerned is
2
suspended until the interim apprehended violence order is
3
confirmed or revoked, or until such time as the court
4
otherwise orders.
5
(5) A court that has made a suspension order may revoke the
6
order at any time while the interim apprehended violence
7
order remains in force.
8
[3] Section 24 Revocation of licence
9
Omit "or an apprehended violence order" from section 24 (1).
10
[4] Section 24A
11
Insert after section 24:
12
24A Court may revoke licence on making of apprehended violence
13
order
14
(1) A court that makes an apprehended violence order against a
15
person may order that any licence that authorises the person
16
to possess or use a firearm is revoked (a revocation order).
17
(2) A revocation order may be made at the time of the making of
18
the apprehended violence order or at a later time while the
19
apprehended violence order remains in force.
20
(3) The court must not make a revocation order unless the court
21
has had regard to the nature of the complaint that gave rise to
22
the apprehended violence order and, having done so, is
23
satisfied that the person's licence should be revoked.
24
(4) A court that has made a revocation order may revoke the order
25
at any time while the apprehended violence order remains in
26
force.
27
[5] Section 25 Surrender and seizure of firearms when licence
28
suspended or revoked
29
Insert after section 25 (2):
30
(3) The Commissioner must ensure that any firearm surrendered
31
or seized under this section is maintained in the same
32
condition as when it was surrendered or seized.
Page 9
Crimes and Firearms Legislation Amendment (Apprehended Violence
Orders) Bill 2004
Schedule 2 Amendment of Firearms Act 1996
1
[6] Sections 25A25C
2
Insert after section 25:
3
25A Court making apprehended violence order may specify the
4
consequences of making of order on issue of licences and
5
permits and on employment
6
(1) A court that makes an apprehended violence order against a
7
person may order that the making of the apprehended
8
violence order is to be disregarded for the purposes of section
9
11, 29 or 44A from the time specified in the order.
10
(2) Such an order may be made at the time of the making of the
11
apprehended violence order or at a later time, regardless of
12
whether the apprehended violence order remains in force.
13
(3) The court must not make such an order unless the court has
14
had regard to the nature of the complaint that gave rise to the
15
apprehended violence order and, having done so, is satisfied
16
that the apprehended violence order should be disregarded for
17
the purposes of section 11, 29 or 44A.
18
25B Restoration of licence or permit if AVO or revocation order
19
revoked
20
(1) This section applies if:
21
(a) a person's licence or permit was revoked by an order
22
under section 24A because the person became subject
23
to an apprehended violence order, and
24
(b) the apprehended violence order is subsequently
25
revoked in accordance with section 562F of the Crimes
26
Act 1900 or the order under section 24A is subsequently
27
revoked.
28
(2) If this section applies:
29
(a) the licence or permit of the person is automatically
30
restored from the time of the revocation of the
31
apprehended violence order or the order under section
32
24A, as the case may be, and
33
(b) the Commissioner must immediately return any licence
34
or permit surrendered by the person when the person's
35
licence or permit was revoked or must issue a new
36
licence or permit to the person immediately.
Page 10
Crimes and Firearms Legislation Amendment (Apprehended Violence
Orders) Bill 2004
Amendment of Firearms Act 1996 Schedule 2
1
25C Restoration of firearms if AVO or revocation order revoked
2
(1) This section applies if:
3
(a) a person's licence or permit was suspended by an order
4
under section 23, or revoked by an order under section
5
24A, because the person became subject to an
6
apprehended violence order, and
7
(b) the apprehended violence order is subsequently
8
revoked in accordance with section 562F of the Crimes
9
Act 1900 or the order under section 24A is subsequently
10
revoked.
11
(2) If this section applies, any firearm surrendered by the person
12
under section 25 (1) or seized by a police officer under section
13
25 (2) must be immediately returned to the person in the same
14
condition as when it was surrendered or seized.
15
[7] Section 29 General restrictions on issuing permits
16
Omit section 29 (3) (c). Insert instead:
17
(c) is subject to an apprehended violence order, unless a
18
court has made an order under section 25A that the
19
apprehended violence order is to be disregarded for this
20
purpose from the time specified in the further order, or
21
(c1) has, at any time within 10 years before the application
22
for the permit was made, been both:
23
(i) subject to an apprehended violence order (other
24
than an order that has been revoked), and
25
(ii) the holder of a licence or permit under this Act or
26
the Firearms Act 1989,
27
unless a court has made a further order under
28
section 25A that the apprehended violence order is to be
29
disregarded for this purpose from the time specified in
30
the further order, or
31
[8] Section 30 Provisions relating to permits
32
Omit "by the Commissioner" from section 30 (4).
Page 11
Crimes and Firearms Legislation Amendment (Apprehended Violence
Orders) Bill 2004
Schedule 2 Amendment of Firearms Act 1996
1
[9] Section 44A Prescribed persons not to be involved in firearms
2
dealing business
3
Insert ", unless a court has made a further order under section 25A that the
4
apprehended violence order is to be disregarded for this purpose from the
5
time specified in the further order" after "order" in section 44A (3) (d).
Page 12
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