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CRIMES (DOMESTIC VIOLENCE) AMENDMENT BILL 1993*
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
The Bail (Domestic Violence) Amendment Bill 1993 is cognate with this Bill.
The object of this Bill is to amend the Crimes Act 1900 to provide further protection
to the victims, or potential victims, of domestic or other personal violence.
Part 15A of the Crimes Act 1900 enables a court to make an apprehended violence
order if a person fears violence or serious harassment or molestation from any other
person.
The main features of this Bill are:
(a)
to enable Magistrates, Clerks of Local Courts and certain other specially
authorised justices to make interim apprehended violence orders after hours, on
the application of police officers by telephone, in circumstances in which the
personal safety of a person may be at immediate risk (the interim orders will be
for a short duration pending appropriate court action); and
(b)
to create a separate offence of intimidation in connection with domestic
relationships and to provide that it extends to all forms of intimidation (such as
threats, harassment, molestation, following about and watching) that are
intended to instil fear for the personal safety of the victim or the victim's
family; and
(c)
to increase the penalty for offences relating to breaches of apprehended
violence orders and for other intimidation etc. offences; and
(d)
to enable young persons over 16 years of age to make complaints on their own
behalf for apprehended violence orders; and
(e)
to make other changes designed to facilitate and expedite the making and
enforcement of apprehended violence orders.
Clause 1 specifies the short title of the proposed Act.
*Amended in committee-see table at end of volume.
Clause 2 provides for the commencement of the proposed Act on a day or days to
be proclaimed.
Clause 3 gives effect to the Schedules of amendments to the Crimes Act 1900.
Clause 4 gives effect to the Schedule of consequential amendments to the Firearms
Act 1989.
Clause 5 provides that any existing apprehended violence order continues to have
effect, and any pending application for such an order may continue to be dealt with,
despite the proposed amendments to Part 15A of the Crimes Act 1900.
SCHEDULE 1--AMENDMENT OF CRIMES ACT 1900 RELATING TO
APPREHENDED VIOLENCE ORDERS
Telephone interim apprehended violence orders
Schedule 1 (7) substitutes section 562H to enable police offrcers to apply to an
authorised justice by telephone after hours for an interim apprehended violence order if
satisfied that the personal safety of a person may be at risk unless an order is made
immediately. The police officer can make such an application if called to an incident at a
time or place when an ordinary complaint for a court order is not practical and if the
defendant is not arrested in connection with the incident. The authorised justice (being a
Magistrate, a Clerk of a Local Court or other specially authorised justice) must be
satisfied that there are reasonable grounds for making the order. The order may exclude
the defendant from the premises (or prevent approaches to the protected person) if there
is an immediate danger of personal injury. The duration of the order is limited to 9 p.m.
on the next working day (in the case of exclusions from premises or the prevention of
approaches to the protected person) or 9 p.m. on the fifth working day (in any other
case). The applicant police officer is to follow up the matter by making a complaint for
a court order or giving an authorised justice reasons why such an order is not being
sought. The telephone interim order may be revoked by the court or any authorised
justice. The defendant may be detained at the premises to enable a telephone interim
order to be made and served.
Schedule 1 (1) (c) expands the definition of "order" in Part 15A to include a
telephone interim order. Accordingly, a contravention of such an order also constitutes
an offence.
Interim court apprehended violence orders and consent orders
Schedule 1 (3) inserts section 562BA into the Act (in place of existing section 562H)
to clarify the existing provisions (which allow a court to make an interim apprehended
violence order in the absence of the defendant and without the defendant having been
given notice of the proceedings). The amendment makes it clear that an interim order
can be made even if the defendant is present or has been given notice. The proposed
section also enables the court in certain circumstances to admit affidavit evidence
tendered on behalf of the person for whose protection the interim order would be made.
Schedule 1 (3) also inserts proposed section 562BB which provides that a court may
make an apprehended violence order if the complainant and the defendant have
consented to the making of the order (in which case the court need not be satisfied on
the balance of probabilities that the person for whose protection the order would be
made has reasonable grounds to fear violence or serious harassment or molestation). The
proposed section makes it clear that an order made with the consent of the parties can be
made by the court whether or not the defendant admits to the particulars of the
complaint made against the defendant.
Increased maximum penalty for contravention of order
At present, section 562I of the Crimes Act 1900 provides that the maximum penalty
for contravening an apprehended violence order is a fine of $2,000 or 6 months'
imprisonment, or both. Schedule 1 (8) (a) increases that maximum penalty to a fine of
$5,000 or 2 years' imprisonment, or both.
Complaints for orders
At present, a complaint for an apprehended violence order must be made by a police
officer if the person for whose protection an order would be made is a child under the
age of 18 years. Schedule 1 (4) (b) lowers the age to 16 years to enable persons of or
above the age of 16 to make a complaint in their own right.
Schedule 1 (6) (b) makes the same amendment in relation to applications for the
variation or revocation of orders.
Schedule 1 (4) (c) provides that the time within which a complaint for an order can
be made is not to be limited by section 56 of the Justices Act 1902 (which provides for
complaints to be made within 6 months from the time when the matter of the complaint
arose). It also provides that the complaint may be dealt with if lodged with the court by
facsimile transmission.
Duration of orders
Schedule 1 (5) substitutes section 562E of the Act so that an apprehended violence
order will not be automatically defective if it does not specify a period for which it is in
force. The proposed section restates the existing provision that the period specified in an
order is to be as long as is necessary in the court's opinion to ensure the safety of the
protected person but it also provides that if the court fails to specify a period, then the
order will be in force for 6 months.
The proposed section also ensures that any interim court order continues in force
until it is revoked or confirmed.
Service of orders
At present, the clerk of a court which makes or varies an order is required to prepare
a written record of the order and serve a copy on the defendant. Schedule 1 (9) provides
for alternative service where the clerk is unable to do so.
The amendment in Schedule 1 (8) (b) ensures that a person who is present in court
when an order is made may be convicted of an offence for contravening an order even if
the person is, not served with a copy of the order.
Miscellaneous
Schedule 1 (4) (a), (6) (a) and (11) update references to members of the Police Force
as a consequence of the establishment of the Police Service.
Schedule 1 (1) (a) and (b), (2) and (10) are consequential amendments.
SCHEDULE 2--AMENDMENT OF CRIMES ACT 1900 RELATING TO
INTIMIDATION ETC. OFFENCES
Schedule 2 (1) increases the maximum penalty for an offence under section 545B of
the Crimes Act 1900 relating to intimidation from 6 months' imprisonment or a fine of
$500 (or both) to 2 years' imprisonment or a fine of $5,000 (or both).
Schedule 2 (2) creates a new offence, in connection with domestic relationships, of
intimidation with the intention of causing fear for the personal safety of a person. The
intimidation concerned is extended to cover threats, harassment, molestation, following
a person about or watching at the person's home or work. The offence may be
established if the accused has reasonable cause to believe that his or her conduct was
capable of causing the fear.
SCHEDULE 3--CONSEQUENTIAL AMENDMENT OF FIREARMS
ACT 1989
The amendments made by Schedule 3 are consequential. The amendments substitute
the definitions of "apprehended violence order" and "interim apprehended violence
order" in the Firearms Act 1989 as a consequence of the amendments to the Crimes Act
1900 relating to interim apprehended violence orders.