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PARLIAMENT OF VICTORIA
Stalking Intervention Orders Bill 2008
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 1
3 Definitions 2
4 Meaning of stalking 4
5 Act not to apply to certain conduct 6
6 Jurisdiction of the Children's Court 6
PART 2--INTERVENTION ORDERS 8
7 Final orders 8
8 Restrictions and prohibitions that may be included in an
intervention order 9
9 Cancellation or suspension of firearms authority 10
10 Duration of order 10
11 Applications for intervention orders 11
12 Police applicants and police prosecutors 12
13 Court may make interim orders 13
14 Applications for intervention orders made by telephone or fax 13
PART 3--PROCEDURES RELATING TO INTERVENTION
ORDERS 16
Division 1--Procedures relating to applications for intervention
orders 16
15 Warrant may issue on certain applications 16
16 Application on oath if warrant to issue 17
17 Service of application for intervention order 17
18 Procedure in absence of the respondent 18
19 Procedure in third party applications 18
20 Rules of evidence not to apply in certain cases 19
21 Restriction on evidence by and presence of children 20
22 Consent orders 20
23 Explanation of orders 20
24 Concurrent criminal proceedings 21
561291B.I-9/9/2008 i BILL LA INTRODUCTION 9/9/2008
Clause Page
Division 2--Variation, revocation or extension of orders 21
25 Variation, revocation or extension of orders 21
26 Who may apply 21
27 Service of application for variation, revocation or extension 22
28 Variation, revocation or extension of order registered interstate 23
Division 3--Service of intervention orders 23
29 Service of intervention orders 23
Division 4--Appeals 24
30 Appeal by respondent 24
31 Appeal by applicant 26
Division 5--Contravention of order 28
32 Contravention of an order 28
33 Arrest for contravention of an order 28
PART 4--SEARCH OF PREMISES AND SEIZURE OF
FIREARMS 29
34 Entry and search of premises 29
35 Surrender of firearms 29
36 Search without warrant 30
37 Warrants to search premises and vehicles 31
38 Announcement before entry 33
39 Copy of the warrant to be given to occupier 33
40 Seizure of firearms 34
41 Effect of seizure of firearms if final order made 34
42 Effect of seizure of firearm if no final order made 35
PART 5--REGISTRATION OF INTERSTATE AND NEW
ZEALAND ORDERS 37
Division 1--Interstate orders 37
43 Registration of corresponding interstate orders 37
44 Effect of registration 37
45 Variation, revocation or extension of corresponding interstate
order 37
Division 2--New Zealand orders 39
46 Registration of corresponding New Zealand orders 39
47 Effect of registration 39
561291B.I-9/9/2008 ii BILL LA INTRODUCTION 9/9/2008
Clause Page
PART 6--MISCELLANEOUS 41
48 Bail on appearance to summons or on arrest 41
49 Restriction on reports of proceedings involving children 41
50 Costs 42
51 Intervention order prevails over order under Children,
Youth and Families Act 2005 42
52 Supreme Court--limitation of jurisdiction 42
53 Rules of court and practice directions for Magistrates' Court 43
54 Rules of court and practice directions for Children's Court 44
55 Regulations 45
PART 7--TRANSITIONAL PROVISIONS 46
56 Definitions 46
57 References to repealed Act 46
58 Intervention orders 46
59 Interim orders 47
60 Complaints and applications 47
61 Proceedings 48
62 Interstate and New Zealand orders 48
PART 8--CONSEQUENTIAL AMENDMENTS 50
Division 1--Amendment to the Bail Act 1977 50
63 Entitlement to bail 50
Division 2--Amendments to the Children, Youth and Families Act
2005 51
64 Definition of child 51
65 Jurisdiction of the Family Division 51
66 Jurisdiction of the Neighbourhood Justice Division 51
Division 3--Amendments to the Corrections Act 1986 52
67 Home detention 52
68 Contents of home detention assessment report 53
Division 4--Amendments to the Crimes Act 1958 53
69 Stalking 53
Division 5--Amendments to the Firearms Act 1996 54
70 Definition 54
71 Immediate cancellation of a licence 54
72 Suspension of licence--certain prohibited persons 54
73 Power of Chief Commissioner to cancel licence under this Part 54
74 Surrender of firearms and licence document 55
561291B.I-9/9/2008 iii BILL LA INTRODUCTION 9/9/2008
Clause Page
75 Application to be deemed not to be prohibited person 55
76 New section 214 inserted 56
214 Transitional Provisions--Stalking Orders
Intervention Act 2008 56
Division 6--Amendment to the Health Records Act 2001 58
77 Definition 58
Division 7--Amendments to the Magistrates' Court Act 1989 58
78 Definition 58
79 Koori Court Division 59
80 Neighbourhood Justice Division 59
Division 8--Amendment to the Police Regulation Act 1958 60
81 Reportable offences 60
Division 9--Amendments to the Sentencing Act 1991 60
82 Home detention 60
83 Contents of home detention assessment report 61
ENDNOTES 62
561291B.I-9/9/2008 iv BILL LA INTRODUCTION 9/9/2008
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Stalking Intervention Orders Bill 2008
A Bill for an Act to provide for a system of intervention orders in
cases of stalking and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purpose
The main purpose of this Act is to provide for a
system of intervention orders in cases of stalking.
5 2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day to be proclaimed.
(2) If this Act does not come into operation before
1 October 2009, it comes into operation on that
10 day.
561291B.I-9/9/2008 1 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 1--Preliminary
s. 3
3 Definitions
In this Act--
affected person means the person whose person or
property is the subject of the application for,
5 or is protected by, an intervention order;
assault has the meaning given in section 31 of the
Crimes Act 1958;
child means a person who is under the age of
18 years;
10 corresponding interstate order means an order--
(a) made under a provision of a law of
another State or a Territory that
corresponds to section 7; or
(b) that is prescribed to be a corresponding
15 interstate order;
corresponding New Zealand order means an
order made under section 16 of the
Harassment Act 1997 of New Zealand;
court means, subject to section 6, the Magistrates'
20 Court;
family member has the meaning given in section 8
of the Family Violence Protection Act
2008;
final order means an order made under section 7
25 and includes--
(a) an order made under section 7 as varied
or extended under section 25; and
(b) an order made under section 7 as
confirmed or varied on appeal to the
30 County Court or Supreme Court;
firearms authority means a licence, permit or
other authority under the Firearms Act 1996
to possess, carry or use firearms;
561291B.I-9/9/2008 2 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 1--Preliminary
s. 3
interim order means an order made under
section 13 or 14 and includes an order made
under section 13 or 14 as varied or extended
under section 25;
5 intervention order means--
(a) an interim order; or
(b) a final order;
parent, in relation to a child, includes a guardian
of the child or a person with whom the child
10 normally or regularly resides;
party, to a proceeding under this Act, includes--
(a) the affected person for the proceeding,
whether or not the person is the
applicant for the proceeding; and
15 (b) if the affected person is not the
applicant for the proceeding, the
applicant; and
(c) the respondent;
police officer means a member of the police force;
20 possession, in relation to a firearm, has the same
meaning as it has under the Firearms Act
1996;
property, in relation to a person, includes--
(a) property of the person; and
25 (b) property that is situated in premises in
which the person lives or works
whether or not it is the person's
property; and
(c) property that is being used by the
30 person whether or not it is the person's
property;
561291B.I-9/9/2008 3 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 1--Preliminary
s. 4
registrar means the registrar of the Magistrates'
Court or the Children's Court (as the case
requires) and includes a deputy registrar of
the Magistrates' Court or the Children's
5 Court (as the case requires);
respondent means a person against whom--
(a) an application for an intervention order
has been made; or
(b) an intervention order has been made;
10 stalking has the meaning given in section 4.
4 Meaning of stalking
(1) A person (the first person) stalks another person
(the second person) if the first person engages in a
course of conduct--
15 (a) with the intention of causing physical or
mental harm to the second person or of
arousing apprehension or fear in the second
person for his or her own safety or that of
any other person; and
20 (b) that includes any of the following--
(i) following the second person or any
other person;
(ii) contacting the second person or any
other person by post, telephone, fax,
25 text message, email or other electronic
communication or by any other means
whatsoever;
(iii) publishing on the Internet or by an
email or other electronic
30 communication to any person a
statement or other material--
(A) relating to the second person or
any other person; or
561291B.I-9/9/2008 4 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 1--Preliminary
s. 4
(B) purporting to relate to, or to
originate from, the second person
or any other person;
(iv) causing an unauthorised computer
5 function (within the meaning of
Subdivision 6 of Division 3 of Part I of
the Crimes Act 1958) in a computer
owned or used by the second person or
any other person;
10 (v) tracing the second person's or any other
person's use of the Internet or of email
or other electronic communications;
(vi) entering or loitering outside or near the
second person's or any other person's
15 place of residence or place of business
or any other place frequented by the
second person or the other person;
(vii) interfering with property in the second
person's or any other person's
20 possession (whether or not the first
person has an interest in the property);
(viii) giving offensive material to the second
person or any other person or leaving it
where it will be found by, given to or
25 brought to the attention of, the second
person or the other person;
(ix) keeping the second person or any other
person under surveillance;
(x) acting in any other way that could
30 reasonably be expected to arouse
apprehension or fear in the second
person for his or her own safety or that
of any other person.
561291B.I-9/9/2008 5 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 1--Preliminary
s. 5
(2) For the purposes of this Act, the first person has
the intention to cause physical or mental harm to
the second person or to arouse apprehension or
fear in the second person for his or her own safety
5 or that of any other person if--
(a) the first person knows that engaging in a
course of conduct of that kind would be
likely to cause such harm or arouse such
apprehension or fear; or
10 (b) the first person in all the particular
circumstances ought to have understood that
engaging in a course of conduct of that kind
would be likely to cause such harm or arouse
such apprehension or fear and it actually did
15 have that result.
5 Act not to apply to certain conduct
This Act does not apply to conduct engaged in by
a person performing official duties for the
following purposes that, but for this section,
20 would constitute grounds for making an order
under this Act--
(a) the enforcement of the criminal law;
(b) the administration of any Act;
(c) the enforcement of a law imposing a
25 pecuniary penalty;
(d) the execution of a warrant;
(e) the protection of the public revenue.
6 Jurisdiction of the Children's Court
(1) If the affected person or the respondent is under
30 the age of 18 years at the time an application is
made under this Act, the Family Division of the
Children's Court and the Magistrates' Court each
have jurisdiction under this Act with respect to the
application.
561291B.I-9/9/2008 6 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 1--Preliminary
s. 6
(2) If the application is made to the Magistrates' Court
and the Magistrates' Court considers that, in all the
circumstances of the case, the matter should be
dealt with by the Children's Court, the
5 Magistrates' Court may discontinue the
proceeding and order that it be transferred to the
Children's Court.
(3) If the application is made to the Children's Court
and the Children's Court considers that, in all the
10 circumstances of the case, the matter should be
dealt with by the Magistrates' Court, the
Children's Court may discontinue the proceeding
and order that it be transferred to the Magistrates'
Court.
15 (4) A court has jurisdiction to revoke, vary or extend,
in accordance with this Act, an order made under
this Act by it or any other court.
(5) Without limiting subsection (4), the Magistrates'
Court or Children's Court may, on an application
20 made under this Act, revoke, vary or extend an
intervention order confirmed or varied by the
County Court or the Supreme Court on appeal
under Division 4 of Part 3.
(6) However, the Magistrates' Court or Children's
25 Court may revoke or vary an intervention order
referred to in subsection (5) only if the Court is
satisfied there are new facts or circumstances
relevant to the order.
(7) In this section, Children's Court and Magistrates'
30 Court includes the Neighbourhood Justice
Division of the Children's Court or Magistrates'
Court (as the case requires).
__________________
561291B.I-9/9/2008 7 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 2--Intervention Orders
s. 7
PART 2--INTERVENTION ORDERS
7 Final orders
(1) The court may make a final order in respect of a
respondent if satisfied on the balance of
5 probabilities that the respondent has stalked
another person and is likely to continue to do so or
to do so again.
(2) The order may impose on the respondent any
restrictions or prohibitions that appear to the court
10 to be necessary or desirable in the circumstances.
(3) A final order may be made in respect of more than
one affected person if the court is satisfied in
accordance with subsection (1) in respect of each
affected person.
15 (4) Despite subsection (1), the court must not make a
final order if satisfied on the balance of
probabilities that the respondent engaged in the
course of conduct without malice--
(a) in the normal course of a lawful business,
20 trade, profession or enterprise (including that
of any body or person whose business, or
whose principal business, is the publication,
or arranging for the publication, of news or
current affairs material); or
25 (b) for the purpose of an industrial dispute; or
(c) for the purpose of engaging in political
activities or discussion or communicating
with respect to public affairs.
(5) It is immaterial that some or all of the course of
30 conduct constituting grounds for making an order
under subsection (1) occurred outside Victoria, so
long as the affected person was in Victoria at the
time at which that conduct occurred.
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Part 2--Intervention Orders
s. 8
(6) It is immaterial that the affected person was
outside Victoria at the time at which some or all
of the course of conduct constituting grounds for
making an order under subsection (1) occurred, so
5 long as that conduct occurred in Victoria.
8 Restrictions and prohibitions that may be included
in an intervention order
(1) Without limiting section 7(2), a final order may do
all or any of the following--
10 (a) restrict or prohibit approaches by the
respondent to the affected person, including
prohibiting the respondent from approaching
within a specified distance from the affected
person;
15 (b) restrict or prohibit access by the respondent
to premises in which the affected person
lives, works or frequents, whether or not the
respondent has a legal or equitable interest in
those premises;
20 (c) restrict or prohibit the respondent from being
in a locality specified in the order;
(d) prohibit the respondent from contacting,
harassing, threatening or intimidating the
affected person;
25 (e) prohibit the respondent from damaging
property of the affected person;
(f) prohibit the respondent from causing another
person to engage in conduct restrained by the
court;
30 (g) cancel or, in the case of an interim order,
suspend any firearms authority held by the
respondent as provided by section 9.
561291B.I-9/9/2008 9 BILL LA INTRODUCTION 9/9/2008
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Part 2--Intervention Orders
s. 9
(2) Before making an intervention order that restricts
or prohibits the respondent's access to any
premises, the court must take into account the
following, giving paramount consideration to the
5 matters in paragraph (a)--
(a) the need to ensure the affected person is
protected from stalking;
(b) the welfare of any children affected by the
order;
10 (c) the accommodation needs of all persons who
may be affected by the order.
9 Cancellation or suspension of firearms authority
(1) Before making an intervention order, the court
must enquire as to whether the respondent holds a
15 firearms authority.
(2) If the court makes an interim order, the order may
suspend the respondent's firearms authority.
(3) If the court makes a final order, the order may
cancel the respondent's firearms authority.
20 (4) To remove any doubt, it is declared that if the
court decides to include in an intervention order a
suspension or cancellation under subsection (2)
or (3)--
(a) no appeal lies against the decision under the
25 Firearms Act 1996; and
(b) the respondent may not apply under
section 189 of the Firearms Act 1996 for a
declaration that the person is deemed not to
be a prohibited person for that Act.
30 10 Duration of order
(1) The court may specify in a final order a period for
which the order is to remain in force.
561291B.I-9/9/2008 10 BILL LA INTRODUCTION 9/9/2008
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Part 2--Intervention Orders
s. 11
(2) A final order remains in force--
(a) for the period (if any) specified by the court
under subsection (1), unless it is sooner
revoked by the court or reversed or set aside
5 on appeal; or
(b) if no period is specified in the order, until it
is revoked by the court or reversed or set
aside on appeal.
11 Applications for intervention orders
10 (1) An application for an intervention order may be
made by--
(a) a police officer; or
(b) the affected person; or
(c) if the affected person is a child--
15 (i) a police officer; or
(ii) a parent of the child; or
(iii) any other person with the written
consent of a parent of the child or with
the leave of the court; or
20 (iv) the affected person with the leave of the
court if he or she is of or above the age
of 14 years; or
(d) any other person, with the written consent of
the affected person if the affected person is
25 of or above the age of 18 years; or
(e) if a guardianship order under the
Guardianship and Administration Act
1986 is in force in respect of the affected
person, by the guardian appointed under that
30 Act or, with the leave of the court, by any
other person.
561291B.I-9/9/2008 11 BILL LA INTRODUCTION 9/9/2008
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Part 2--Intervention Orders
s. 12
(2) If an application for leave is made under
subsection (1)(c)(iii) or (e), the court must grant
leave if it is satisfied that it is in the best interests
of the affected person to do so.
5 (3) If an application for leave is made under
subsection (1)(c)(iv), the court must not grant
leave unless it is satisfied that the child
understands the nature and consequences of an
intervention order.
10 (4) An application in respect of an affected person
who is a child may be included in an application
in respect of the child's parent if the applications
arise out of the same or similar circumstances.
(5) An application referred to in subsection (4) may,
15 on the application of the applicant or the
respondent, be heard separately if the court thinks
fit.
(6) Any number of applications against a respondent
may, on the application of the applicants or the
20 respondent, be heard together if the court thinks
fit.
12 Police applicants and police prosecutors
If an application for an intervention order or an
application under section 26 is made by a police
25 officer, any police officer may represent that
officer at the hearing of the application.
Note
Section 123(1) of the Police Regulation Act 1958 provides
that a member of the police force is not personally liable for
30 anything necessarily or reasonably done or omitted to be
done in good faith in the course of his or her duty as a
member of the force.
561291B.I-9/9/2008 12 BILL LA INTRODUCTION 9/9/2008
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Part 2--Intervention Orders
s. 13
13 Court may make interim orders
(1) If an application for an intervention order has
been made, the court may make an interim order if
satisfied that it is necessary to ensure the safety of
5 the affected person or to preserve any property of
the affected person pending the hearing and
determination of the application.
(2) The court may make an interim order whether or
not a copy of the application for the intervention
10 order has been served on the respondent.
(3) An interim order may include any restrictions or
prohibitions that may be imposed on the
respondent by a final order, including a restriction
or prohibition of a kind referred to in section 8(1),
15 other than cancelling a firearms authority.
(4) Except in the case of an application made under
section 14 by telephone or facsimile machine, the
court must not make an interim order unless the
application is supported by oral evidence.
20 (5) An interim order made in the absence of the
respondent only operates until the time specified
in the order or until a further order of the court is
made.
14 Applications for intervention orders made by
25 telephone or fax
(1) A police officer may apply for an intervention
order by telephone or facsimile machine if--
(a) the police officer is seeking an interim order
until the final order may be determined; and
30 (b) either of the following apply--
(i) the application is made--
(A) before 9 a.m. or after 5 p.m. on a
weekday; or
561291B.I-9/9/2008 13 BILL LA INTRODUCTION 9/9/2008
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Part 2--Intervention Orders
s. 14
(B) on a Saturday, Sunday or public
holiday; or
(ii) the distance from the nearest venue of
the court where the court is sitting is so
5 great that it is impracticable to make
the application in person.
(2) Before making an application by telephone or
facsimile machine, the police officer must
complete a form of application setting out--
10 (a) the grounds on which the intervention order
is sought; and
(b) the reason an interim order is sought until the
final order may be determined.
(3) On an application made by telephone or facsimile
15 machine, the court is not bound by the rules of
evidence.
(4) On an application made by telephone, the court
may, if practicable, hear the respondent or the
affected person or both.
20 (5) If the court makes an interim order on an
application made by telephone or facsimile
machine, the court--
(a) must inform the police officer of the
following--
25 (i) the terms of the order;
(ii) the period of operation of the order;
(iii) the venue of the court at which the
further hearing of the application will
take place;
30 (iv) the date on which and the time at which
the order was made; and
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Part 2--Intervention Orders
s. 14
(b) must cause a copy of the order to be
forwarded to the registrar before the further
hearing of the application.
(6) If an interim order is made on an application made
5 by telephone or facsimile machine, the police
officer who made the application--
(a) must complete a form of order in the terms
indicated by the court under subsection
(5)(a) and must write on it the name of the
10 magistrate who constituted the court that
made the order and the date on which and the
time at which it was made; and
(b) if the respondent is present, must serve a
copy of the order personally on the
15 respondent; and
(c) must file the form of order completed by the
officer with the court before the further
hearing of the application.
(7) If an application for an intervention order is made
20 by telephone or facsimile machine, whether or not
an interim order is made, the police officer who
made the application must file the form of order
completed by the officer with the court before the
hearing of the application for a final order.
__________________
561291B.I-9/9/2008 15 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 3--Procedures Relating to Intervention Orders
s. 15
PART 3--PROCEDURES RELATING TO INTERVENTION
ORDERS
Division 1--Procedures relating to applications for
intervention orders
5 15 Warrant may issue on certain applications
(1) If an application has been made for an
intervention order, the registrar may--
(a) issue a summons to the respondent to attend
court for the hearing of the application; or
10 (b) issue a warrant, in accordance with
subsection (2), to arrest the respondent as if
the application alleged the commission of an
offence.
(2) The registrar may issue a warrant to arrest the
15 respondent if--
(a) the application alleges that the respondent
has stalked the affected person; and
(b) the registrar is satisfied that the personal
safety of the affected person would be
20 seriously threatened or that damage would be
likely to be caused to any property of the
affected person unless the respondent was
arrested and brought into custody.
(3) If a warrant has been issued to arrest a respondent,
25 any police officer may arrest the respondent
although the execution copy of the warrant is not
in the police officer's possession at the time of the
arrest.
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Part 3--Procedures Relating to Intervention Orders
s. 16
(4) For the avoidance of doubt, a magistrate may
issue a warrant to arrest in the circumstances set
out in subsection (2).
Note
5 Division 3 of Part 4 of the Magistrates' Court Act 1989
contains provisions for the issuing of warrants.
Section 57(4) of that Act provides that all warrants, other
than a search warrant, may be issued by a registrar or a
magistrate.
10 16 Application on oath if warrant to issue
If the applicant seeks a warrant to issue in the first
instance for the arrest of the respondent, the
application must be in writing and on oath and the
application and the warrant must be in the same
15 document.
17 Service of application for intervention order
(1) If the applicant for an intervention order is not the
affected person, the applicant must as soon as
practicable after the application has been made
20 arrange for a copy of the application to be served
personally on--
(a) the affected person; or
(b) if the affected person is a child, on any
parent with whom the child normally or
25 regularly resides; or
(c) if a guardianship order under the
Guardianship and Administration Act
1986 is in force in respect of the affected
person, on the guardian appointed under that
30 Act.
(2) The application must be served on the respondent
by--
(a) delivering a true copy of the application to
the respondent personally; or
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Part 3--Procedures Relating to Intervention Orders
s. 18
(b) leaving a true copy of the application for the
respondent at the respondent's last or most
usual place of residence or of business with a
person who apparently resides or works there
5 and who apparently is not less than 16 years
of age.
(3) If it appears to the court, by evidence on oath or
by affidavit, that service cannot be promptly
effected, the court may make an order for
10 substituted service.
18 Procedure in absence of the respondent
(1) This section applies if--
(a) a summons has been served on the
respondent or the respondent is bailed to
15 appear at the hearing of the application for
the intervention order; and
(b) the respondent fails to appear in person at the
time fixed for the hearing of the application.
(2) The court may--
20 (a) proceed to hear and determine the matter in
the respondent's absence; or
(b) if satisfied that it is appropriate to do so,
adjourn the matter and issue a warrant to
arrest the respondent and bring the
25 respondent before the court.
19 Procedure in third party applications
(1) This section applies if an application for an
intervention order or an application under
section 26 is made by a person other than the
30 affected person or a police officer.
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Part 3--Procedures Relating to Intervention Orders
s. 20
(2) The court must not commence or continue the
hearing of the application if either of the
following persons objects to the application being
heard and determined--
5 (a) the affected person;
(b) if the affected person is a child, the parent
(if any) who consented under section
11(1)(c)(iii) to the making of the application
for an intervention order.
10 (3) This section does not apply if the applicant under
section 26 is the respondent.
20 Rules of evidence not to apply in certain cases
(1) This section applies to--
(a) a hearing of an application for an
15 intervention order if the affected person is a
child; or
(b) a hearing of an application for an interim
order if the applicant is a person other than
the affected person.
20 (2) The court--
(a) may inform itself on a matter in such manner
as it thinks fit, despite any rules of evidence
to the contrary; and
(b) is not required to receive evidence from the
25 affected person before making the order
concerned.
(3) If a hearing referred to in subsection (1)(a) relates
to an application made in respect of more than one
affected person, subsection (2) applies only in
30 relation to the affected persons who are children.
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Part 3--Procedures Relating to Intervention Orders
s. 21
21 Restriction on evidence by and presence of children
A child (other than a child who is the respondent
in proceedings under this Act) who is--
(a) the affected person in the proceedings; or
5 (b) a family member of the respondent or of the
affected person in the proceedings--
must not be present during, or called as a witness
in, those proceedings unless the court makes an
order allowing the child to be present or called as
10 a witness (as the case may be).
22 Consent orders
(1) If the parties to a proceeding for an intervention
order consent to the making of the order, the court
may make the order--
15 (a) without being satisfied as to any matter
referred to in section 7(1); and
(b) whether or not the respondent admits to any
or all of the particulars of the application.
(2) Before making an order with the consent of the
20 parties to the proceeding, the court may conduct a
hearing in relation to the particulars of the
application if it is of the opinion that the interests
of justice require it to do so.
23 Explanation of orders
25 If the court proposes to make an intervention
order and the respondent is before the court, the
court must, before making the order, explain to
the respondent--
(a) the purpose, terms and effect of the proposed
30 order, including the effect of the order on
any firearms authority held by the
respondent; and
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Stalking Intervention Orders Bill 2008
Part 3--Procedures Relating to Intervention Orders
s. 24
(b) the consequences that may follow if the
respondent fails to comply with the terms of
the proposed order; and
(c) the means by which the proposed order may
5 be varied or revoked.
24 Concurrent criminal proceedings
(1) The court may make an intervention order in
respect of a person even though the person has
been charged with an offence arising out of the
10 same conduct as that out of which the application
for the intervention order arose.
(2) The order may be made at any time before or after
the commencement of proceedings for the
offence.
15 Division 2--Variation, revocation or extension of orders
25 Variation, revocation or extension of orders
(1) If an intervention order is in force, the court may
order the variation, revocation or extension of the
order on an application under this Division.
20 (2) The court may order that an intervention order be
varied or revoked on the application of the
respondent only if there has been a change in the
circumstances in which the order was made.
26 Who may apply
25 (1) An application to vary, revoke or extend an
intervention order may be made to the court by
any of the following persons--
(a) a party to the proceedings in which the order
was made;
30 (b) if the affected person is a child and the
application for an intervention order was
made with the consent of a parent under
section 11(1)(c)(iii), that parent;
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Part 3--Procedures Relating to Intervention Orders
s. 27
(c) if the affected person is a child who is
14 years of age or over, the affected person
but only with the leave of the court.
(2) If the applicant is not a police officer or the
5 affected person or respondent, the application may
be made only with the written consent of--
(a) the affected person; or
(b) if the affected person is a child and the
application for the intervention order was
10 made with the consent of a parent under
section 11(1)(c)(iii), that parent.
27 Service of application for variation, revocation or
extension
(1) An applicant for an order to vary, revoke or
15 extend an intervention order must cause a copy of
the application to be served on the following
persons--
(a) each other party or each party (as the case
may be) to the proceedings under which the
20 intervention order was made;
(b) if the affected person is a child and the
application was made with the consent of a
parent under section 11(1)(c)(iii), that parent.
(2) A copy of an application required to be served on
25 a person under this section may be served by--
(a) delivering the copy to the person personally;
or
(b) leaving the copy for the person at the
person's last or most usual place of residence
30 or place of business with a person who
apparently resides or works there and who
apparently is not less than 16 years of age.
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Part 3--Procedures Relating to Intervention Orders
s. 28
(3) If it appears to the court that it is not reasonably
practicable to serve, in accordance with
subsection (2), a copy of an application it may--
(a) order that a copy of the application be served
5 by any other means it considers appropriate;
or
(b) make an order for substituted service.
28 Variation, revocation or extension of order
registered interstate
10 (1) This section applies if--
(a) the court orders the variation, revocation or
extension of an intervention order; and
(b) that order is registered under a law of
another State or a Territory that corresponds
15 to section 43.
(2) The registrar must notify the relevant officer of
the court in which the order is registered of the
terms of the variation, revocation or extension.
Division 3--Service of intervention orders
20 29 Service of intervention orders
(1) If the court makes, varies, extends or revokes an
intervention order, the registrar must--
(a) arrange for the order to be drawn up and
filed in the court; and
25 (b) cause a copy of the order to be served
personally on the respondent; and
(c) cause a copy of the order to be forwarded
to--
(i) the Chief Commissioner of Police; and
30 (ii) each person who was a party to the
proceedings; and
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Part 3--Procedures Relating to Intervention Orders
s. 30
(iii) if the affected person is a child and the
application for the intervention order
was made with the consent of a parent
under section 11(1)(c)(iii), that parent;
5 and
(iv) the officer in charge of the police
station closest to the place of residence
of the affected person.
(2) If it appears to the court that it is not reasonably
10 practicable to serve a copy of an order personally,
it may--
(a) order that a copy of the order be served by
any other means that it thinks appropriate; or
(b) make an order for substituted service.
15 Division 4--Appeals
30 Appeal by respondent
(1) In this section--
relevant decision means a decision of the court
hearing the application--
20 (a) to make a final order; or
(b) to vary, revoke or extend, or to refuse
to vary, revoke or extend, an
intervention order; or
(c) to make any term of an order referred to
25 in paragraph (a) or (b).
(2) The respondent may appeal to the County Court
(or, if the court was the Children's Court
constituted by the President of that Court, to the
Trial Division of the Supreme Court) against a
30 relevant decision.
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Part 3--Procedures Relating to Intervention Orders
s. 30
(3) The giving of notice of appeal to the County Court
or the Supreme Court (as the case requires) does
not stay the operation of the order but the court
which made the order may, on the application of
5 the respondent, in its discretion stay the operation
of the order or any term of the order pending the
decision of the appeal.
(4) A respondent who wants to appeal must, within
one month after the relevant decision, serve
10 written notice of the respondent's intention to
appeal on the following persons--
(a) all other parties to the proceedings in which
the relevant decision was made;
(b) the registrar of the court;
15 (c) if the affected person is a child and the
application for the intervention order was
made with the consent of a parent under
section 11(1)(c)(iii), that parent;
(d) the Registrar of the County Court or the
20 prothonotary of the Supreme Court (as the
case requires).
(5) The notice of appeal must--
(a) be signed by the respondent; and
(b) set out the grounds for the appeal.
25 (6) An appellant applying for the stay of operation of
an order or any term of the order must give notice
to the applicant for the intervention order and any
person required to be notified under
subsection (4).
30 (7) In staying the operation of the order or any term
of the order the court may impose bail conditions
on the appellant as though the appellant were an
accused person being released from custody on
bail.
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Part 3--Procedures Relating to Intervention Orders
s. 31
(8) The County Court or the Supreme Court (as the
case requires) must proceed to re-hear the case
upon appeal and may confirm, reverse or vary the
decision or order of the court and make any other
5 order that the court could have made and exercise
any other powers that the court might have
exercised.
(9) The provisions of the Magistrates' Court Act
1989 or the Children, Youth and Families Act
10 2005 (as the case requires) so far as applicable and
with any necessary modifications and adaptations
extend and apply to appeals under this section.
31 Appeal by applicant
(1) In this section--
15 relevant decision means a decision of the court
hearing an application--
(a) not to make a final order; or
(b) not to vary, revoke or extend a final
order; or
20 (c) to make a final order in terms that
aggrieve the applicant; or
(d) to vary, revoke or extend an
intervention order in terms that
aggrieve the applicant.
25 (2) The applicant may appeal to the County Court (or,
if the court was the Children's Court constituted
by the President of that Court, to the Trial
Division of the Supreme Court) against a relevant
decision.
30 (3) An applicant who wants to appeal must, within
one month after the relevant decision, serve
written notice of the applicant's intention to appeal
on the following persons--
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Part 3--Procedures Relating to Intervention Orders
s. 31
(a) all other parties to the proceedings in which
the relevant decision was made;
(b) the registrar of the court;
(c) if the affected person is a child and the
5 application for the intervention order was
made with the consent of a parent under
section 11(1)(c)(iii), that parent;
(d) the Registrar of the County Court or the
prothonotary of the Supreme Court (as the
10 case requires).
(4) The notice of appeal must--
(a) be signed by the applicant; and
(b) set out the grounds for the appeal.
(5) The County Court or the Supreme Court (as the
15 case requires) must proceed to re-hear the case
upon appeal and may confirm, reverse or vary the
decision or order of the court and make any other
order that the court could have made and exercise
any other powers that the court might have
20 exercised.
(6) The applicant may not bring any further appeal
against any order made by the County Court or the
Supreme Court (as the case requires).
(7) The provisions of the Magistrates' Court Act
25 1989 or the Children, Youth and Families Act
2005 (as the case requires) so far as applicable and
with any necessary modifications and adaptations
extend and apply to appeals under this section.
(8) Except in the case of an application for variation,
30 revocation or extension of an intervention order, if
the applicant is not the affected person or a police
officer, the County Court or the Supreme Court
(as the case requires) must not commence or
continue the hearing of the appeal if--
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Part 3--Procedures Relating to Intervention Orders
s. 32
(a) the affected person objects to the appeal; or
(b) if the affected person is a child, and the
application was made with the consent of a
parent under section 11(1)(c)(iii), that parent
5 objects to the appeal.
Division 5--Contravention of order
32 Contravention of an order
A person against whom an intervention order has
been made and who has been served with a copy
10 of the order or has had an explanation of the order
given to the person under section 23, must not
contravene the order.
Penalty: 240 penalty units or imprisonment for
2 years or both.
15 33 Arrest for contravention of an order
If a police officer believes on reasonable grounds
that a person has committed an offence under
section 32 the police officer may, without warrant,
arrest and detain the person.
__________________
561291B.I-9/9/2008 28 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 4--Search of Premises and Seizure of Firearms
s. 34
PART 4--SEARCH OF PREMISES AND SEIZURE OF
FIREARMS
34 Entry and search of premises
(1) A police officer may, without warrant, enter and
5 search any premises where the officer on
reasonable grounds believes a person to be if--
(a) the officer reasonably believes a person is on
the premises in contravention of an
intervention order; or
10 (b) the officer has the express or implied consent
of an occupier of the premises to do so.
(2) In order to enter premises under subsection (1), a
police officer may, if it is necessary to do so, use
reasonable force.
15 (3) This section does not limit any other power that a
police officer may have to enter premises under
this or any other Act or at common law.
35 Surrender of firearms
(1) This section applies if--
20 (a) an intervention order has been made against
a person or a police officer is satisfied, on
the balance of probabilities, that there are
grounds for the making of an intervention
order against the person; and
25 (b) the police officer is aware that the person has
a firearm, a firearms authority or ammunition
in the person's possession.
(2) The police officer may--
(a) direct the person to immediately surrender
30 the firearm, firearms authority or
ammunition to the police officer; or
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Part 4--Search of Premises and Seizure of Firearms
s. 36
(b) by written notice served on the person, direct
the person to surrender the firearm, firearms
authority or ammunition to a police officer at
a specified place within a specified time or,
5 if no time is specified, within 48 hours after
the direction is given to the person.
(3) A direction under subsection (2) must include the
prescribed particulars.
(4) A person given a direction under subsection (2)
10 must not, without lawful excuse, fail to comply
with the direction.
Penalty: In the case of a failure to comply with a
direction to surrender a firearm,
60 penalty units;
15 In the case of a failure to comply with a
direction to surrender a firearms
authority or ammunition, 30 penalty
units.
36 Search without warrant
20 (1) This section applies if--
(a) an intervention order has been made against
a person, or a police officer is satisfied that,
on the balance of probabilities, there are
grounds for the making of an intervention
25 order against a person; and
(b) the police officer is aware, or has reasonable
grounds to suspect, that the person is in
possession of a firearm, a firearms authority
or ammunition.
30 (2) The police officer may, without warrant, enter and
search--
(a) any premises at which the person resides or
has resided; or
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Part 4--Search of Premises and Seizure of Firearms
s. 37
(b) the premises at which the person committed
or allegedly committed stalking; or
(c) a vehicle registered in the person's name.
(3) To enter premises or a vehicle under
5 subsection (2), a police officer may, if it is
necessary to do so, use reasonable force.
37 Warrants to search premises and vehicles
(1) A police officer may apply to a magistrate for the
issue of a search warrant in relation to particular
10 premises or a vehicle if--
(a) the police officer intends to apply for an
intervention order against a person or an
intervention order has been made against a
person; and
15 (b) the police officer believes on reasonable
grounds--
(i) the person is committing or is about to
commit an offence against this Act; or
(ii) the person is in possession of a firearm,
20 a firearms authority or ammunition at
premises or in a vehicle, other than
premises at which the person resides or
has resided or at which the person
committed or allegedly committed
25 stalking or a vehicle registered in the
person's name.
(2) If the magistrate is satisfied by the evidence on
oath, whether oral or by affidavit, that there are
reasonable grounds for suspecting that an offence
30 against this Act is being or is about to be
committed or the person is in possession of a
firearm, firearms authority or ammunition, the
magistrate may issue a search warrant authorising
the police officer named in the warrant and any
35 assistants the police officer considers necessary--
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Part 4--Search of Premises and Seizure of Firearms
s. 37
(a) to enter the premises or vehicle named or
described in the warrant; and
(b) to search for and seize--
(i) any evidence of the offence named or
5 described in the warrant; or
(ii) any firearms, firearms authority or
ammunition as specified in the warrant.
(3) In addition to any other requirement, a search
warrant issued under this section must state--
10 (a) if the grounds for seeking the warrant are the
grounds referred to in subsection (1)(b)(i),
the offence suspected; and
(b) if the grounds for seeking the warrant are the
grounds referred to in subsection (1)(b)(ii),
15 the reason it is necessary to search for the
firearm, firearms authority or ammunition in
the person's possession; and
(c) the premises or vehicle to be searched; and
(d) a description of the evidence or firearm,
20 firearms authority or ammunition to be
searched for; and
(e) any conditions to which the warrant is
subject; and
(f) whether entry is authorised to be at any time
25 or during stated hours; and
(g) a day, not later than 7 days after the issue of
the warrant, on which the warrant ceases to
have effect.
(4) A search warrant must be issued in accordance
30 with the Magistrates' Court Act 1989 and in the
prescribed form under that Act.
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Part 4--Search of Premises and Seizure of Firearms
s. 38
(5) The rules to be observed with respect to search
warrants set out by or under the Magistrates'
Court Act 1989 extend and apply to warrants
under this section.
5 38 Announcement before entry
(1) Before executing a search warrant, the police
officer named in the warrant or person assisting
the police officer must announce that he or she is
authorised by warrant to enter the premises and
10 give any person at the premises an opportunity to
allow entry to the premises.
(2) The police officer or a person assisting the police
officer need not comply with subsection (1) if the
police officer or assistant believes, on reasonable
15 grounds, that immediate entry to the premises is
required to ensure--
(a) the safety of any person; or
(b) that the effective execution of the search
warrant is not frustrated.
20 (3) To enter premises under the search warrant, a
police officer may, if it is necessary to do so, use
reasonable force.
39 Copy of the warrant to be given to occupier
If the occupier or another person who apparently
25 represents the occupier is present at the premises
when a search warrant is being executed, the
police officer must--
(a) identify himself or herself to the person as a
police officer; and
30 (b) give that person a copy of the execution copy
of the warrant.
561291B.I-9/9/2008 33 BILL LA INTRODUCTION 9/9/2008
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Part 4--Search of Premises and Seizure of Firearms
s. 40
40 Seizure of firearms
If a person fails to comply with a direction given
to the person under section 35, or a police officer
searches premises under section 36, the police
5 officer--
(a) must seize any firearm or firearms authority
the officer is aware is in the person's
possession; and
(b) may seize ammunition the officer is aware is
10 in the person's possession.
41 Effect of seizure of firearms if final order made
(1) If a person's firearm, firearms authority or
ammunition is seized under section 37 or 40 and a
final order has been or is made against the person,
15 any firearm, firearms authority or ammunition
seized must be--
(a) returned to the person if--
(i) the person is declared under the
Firearms Act 1996 not to be a
20 prohibited person; and
(ii) the firearm, firearms authority or
ammunition is not required as evidence
in further proceedings under this Act or
another Act and is not subject to
25 forfeiture after a proceeding for an
offence under this Act or another Act;
or
(b) if paragraph (a) does not apply and the
period during which, under section 47A(2) of
30 the Firearms Act 1996, the person may
make an application under section 189 of
that Act has ended or the application has
been refused, forfeited to the Crown or
disposed of in accordance with directions in
35 the order or, if there are no such directions,
561291B.I-9/9/2008 34 BILL LA INTRODUCTION 9/9/2008
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Part 4--Search of Premises and Seizure of Firearms
s. 42
forfeited to the Crown or disposed of, under
the Firearms Act 1996.
(2) If a firearm or ammunition is disposed of by sale
under this section in accordance with directions in
5 an order, the proceeds of the sale must be paid to
the owner of the firearm or ammunition.
42 Effect of seizure of firearm if no final order made
(1) This section applies if--
(a) a person's firearm, firearms authority or
10 ammunition is seized under section 37 or 40;
and
(b) the following applies--
(i) a final order is not made in respect of
the person;
15 (ii) an application for an intervention order
is not made within a reasonable time;
(iii) the firearm, firearms authority or
ammunition is not otherwise required
as evidence in further proceedings
20 under this Act or another Act;
(iv) the firearm, firearms authority or
ammunition is not subject to forfeiture
after a proceeding for an offence under
this Act or another Act.
25 (2) The firearm, firearms authority or ammunition
seized must--
(a) if the firearm, firearms authority or
ammunition is required to be forfeited or
disposed of under the Firearms Act 1996 or
30 another Act--be forfeited or disposed of in
accordance with that Act; or
(b) otherwise--be returned to the person.
561291B.I-9/9/2008 35 BILL LA INTRODUCTION 9/9/2008
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Part 4--Search of Premises and Seizure of Firearms
s. 42
(3) If a firearm or ammunition is disposed of by sale
under subsection (2), the proceeds of the sale must
be paid to the owner of the firearm or
ammunition.
__________________
561291B.I-9/9/2008 36 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 5--Registration of Interstate and New Zealand Orders
s. 43
PART 5--REGISTRATION OF INTERSTATE AND NEW
ZEALAND ORDERS
Division 1--Interstate orders
43 Registration of corresponding interstate orders
5 (1) The registrar may register a corresponding
interstate order in the court.
(2) On registration of an order, the registrar must--
(a) notify the court that made the order of the
registration; and
10 (b) forward a copy of the order to the Chief
Commissioner of Police.
44 Effect of registration
(1) A registered corresponding interstate order--
(a) has the same effect as a final order made
15 under section 7; and
(b) may be enforced against a person as if it
were a final order and as if a copy of the
order had been served on that person in
accordance with section 29(1)(b).
20 (2) The variation or revocation of a corresponding
interstate order by a court of the State or Territory
in which it was made after the order is registered
under this section has no effect in Victoria.
45 Variation, revocation or extension of corresponding
25 interstate order
(1) The court, on application of a person referred to in
subsection (2), may--
(a) vary a registered corresponding interstate
order as it applies in Victoria; or
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Part 5--Registration of Interstate and New Zealand Orders
s. 45
(b) extend the period during which a registered
corresponding interstate order has effect in
Victoria; or
(c) revoke the registration of a registered
5 corresponding interstate order.
(2) Any of the following persons may make an
application referred to in subsection (1)--
(a) a person for whose protection a registered
corresponding interstate order has been
10 made;
(b) a person against whom a registered
corresponding interstate order has been
made;
(c) a police officer;
15 (d) a person who has been granted leave by the
court to make an application.
(3) A court must not vary, extend or revoke a
registered corresponding interstate order on the
application of a person, other than the person
20 against whom it was made, unless notice of the
application has been served on the person against
whom the order was made.
(4) A court must not vary, extend or revoke a
registered corresponding interstate order on the
25 application of the person against whom it was
made unless notice of the application has been
served on the person for whose protection the
order was made.
(5) The registrar must arrange for notice of an
30 application for the variation, extension or
revocation of an interstate summary protection
order to be served personally or in such other
manner as the court hearing the application
directs.
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Part 5--Registration of Interstate and New Zealand Orders
s. 46
(6) If the court varies or extends a registered
corresponding interstate order or revokes the
registration of a corresponding interstate order, the
registrar must give notice of the variation,
5 extension or revocation to--
(a) the court that made the order; and
(b) the Chief Commissioner of Police.
Division 2--New Zealand orders
46 Registration of corresponding New Zealand orders
10 (1) The registrar may register a corresponding New
Zealand order in the court.
(2) On registration of the order, the registrar must--
(a) notify the court that made the order of the
registration; and
15 (b) forward a copy of the order to the Chief
Commissioner of Police.
47 Effect of registration
(1) A registered corresponding New Zealand order--
(a) has the same effect in Victoria as it has for
20 the time being in New Zealand; and
(b) has that effect as if it were a final order made
under this Act.
(2) A contravention of a registered corresponding
New Zealand order in Victoria is taken to be a
25 contravention of a final order for the purposes of
imposing a penalty.
(3) If a registered corresponding New Zealand order
is varied, discharged or extended by a court in
New Zealand--
30 (a) the registration is varied, discharged or
extended accordingly; and
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Part 5--Registration of Interstate and New Zealand Orders
s. 47
(b) the registrar must notify the Chief
Commissioner of Police of the variation,
discharge or extension.
__________________
561291B.I-9/9/2008 40 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 6--Miscellaneous
s. 48
PART 6--MISCELLANEOUS
48 Bail on appearance to summons or on arrest
(1) The Bail Act 1977 applies to and in respect of a
respondent to an application for an intervention
5 order arrested under a warrant as if the respondent
were an accused person charged with an offence
to whom section 4 of the Bail Act 1977 applies.
(2) For the purposes of subsection (1), the appropriate
person must--
10 (a) advise the affected person of the outcome of
the application for bail; and
(b) if bail is granted--
(i) advise the affected person of any
special conditions imposed on the
15 respondent that are intended to protect
the affected person; and
(ii) give the affected person a copy of the
undertaking of bail.
(3) In subsection (2)--
20 appropriate person means--
(a) if the application is considered by a
court (other than a bail justice), the
registrar of the court; and
(b) if the application is considered by a bail
25 justice or a police officer, a police
officer.
49 Restriction on reports of proceedings involving
children
If a party to, or witness in, proceedings under this
30 Act is a child, a person must not publish or cause
to be published in a newspaper or by television or
other means--
561291B.I-9/9/2008 41 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 6--Miscellaneous
s. 50
(a) a report of any of the proceedings containing
the locality or any particulars calculated to
lead to identification of the particular venue
of the court or the name, address or school or
5 any particulars calculated to lead to the
identification of the child or any other person
in the proceedings either as a party to the
proceedings or as a witness in the
proceedings; and
10 (b) any picture of or including the child or other
person concerned in the proceedings.
Penalty: 20 penalty units.
50 Costs
(1) Each party to proceedings under this Act must
15 bear the party's own costs of those proceedings,
unless the court decides that exceptional
circumstances warrant otherwise in a particular
case.
(2) Despite subsection (1), if the court is satisfied in a
20 particular case that the making of any application
under this Act was vexatious, frivolous or in bad
faith, the court may award costs against the
applicant.
51 Intervention order prevails over order under
25 Children, Youth and Families Act 2005
An intervention order under this Act applies
despite any order under the Children, Youth and
Families Act 2005.
52 Supreme Court--limitation of jurisdiction
30 It is the intention of section 31 to alter or vary
section 85 of the Constitution Act 1975.
561291B.I-9/9/2008 42 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 6--Miscellaneous
s. 53
53 Rules of court and practice directions for
Magistrates' Court
(1) The Chief Magistrate together with 2 or more
Deputy Chief Magistrates may jointly make rules
5 of court for or with respect to proceedings in the
Magistrates' Court in relation to applications and
orders made under this Act.
(2) Without limiting subsection (1), rules may be
made for or with respect to the following
10 matters--
(a) the proper venue for proceedings under this
Act, including the transfer of proceedings
between court venues;
(b) the right of parties to appear personally or to
15 be represented by a legal practitioner;
(c) the amendment of applications;
(d) the striking out or dismissal by the court of
matters;
(e) the adjournment of proceedings by the court
20 and the power to stay orders;
(f) access to records and documents held by the
court;
(g) extracts from records and documents held by
the court and certification of those extracts.
25 (3) A power conferred by this Act to make rules may
be exercised in accordance with section 16(1D)
and 16(1E) of the Magistrates' Court Act 1989
as if the rules had been made under section 16 of
that Act.
30 (4) To remove any doubt, it is declared that the power
of the Chief Magistrate to issue practice
directions, statements or notes for the court under
section 16A of the Magistrates' Court Act 1989
in relation to civil proceedings or any class of civil
561291B.I-9/9/2008 43 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 6--Miscellaneous
s. 54
proceedings includes power to issue practice
directions, statements or notes for the court in
relation to proceedings, or any class of
proceedings, with respect to applications or orders
5 made under this Act.
(5) A practice direction, statement or note issued with
respect to proceedings, or any class of
proceedings, with respect to applications under
this Act is taken to have been issued under section
10 16A(1) of the Magistrates' Court Act 1989.
54 Rules of court and practice directions for Children's
Court
(1) The President of the Children's Court together
with 2 or more magistrates of the court may
15 jointly make rules for or with respect to
proceedings in the court in relation to applications
and orders made under this Act.
(2) Without limiting subsection (1), rules may be
made for or with respect to the following
20 matters--
(a) the proper venue for proceedings under this
Act, including the transfer of proceedings
between court venues;
(b) the right of parties to appear personally or to
25 be represented by a legal practitioner;
(c) the amendment of applications;
(d) the striking out or dismissal by the court of
matters;
(e) the adjournment of proceedings by the court
30 and the power to stay orders;
(f) access to records and documents held by the
court;
(g) extracts from records and documents held by
the court and certification of those extracts.
561291B.I-9/9/2008 44 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 6--Miscellaneous
s. 55
(3) Rules made under subsection (1) may adopt or
apply rules made for the Magistrates' Court under
section 53.
(4) To remove any doubt, it is declared that the power
5 of the President of the Children's Court to issue
practice directions, statements or notes for the
court under section 592 of the Children, Youth
and Families Act 2005 in relation to proceedings
in the Family Division or the Criminal Division,
10 or any class of proceedings in the Family Division
or Criminal Division, includes power to issue
practice directions, statements or notes for the
court in relation to proceedings, or any class of
proceedings, with respect to applications or orders
15 made under this Act.
(5) A practice direction, statement or note issued with
respect to proceedings, or any class of
proceedings, with respect to applications or orders
under this Act is taken to have been issued under
20 section 592(1) of the Children, Youth and
Families Act 2005.
55 Regulations
The Governor in Council may make regulations
for or with respect to any matter or thing required
25 or permitted by this Act to be prescribed or
necessary to be prescribed to give effect to this
Act.
__________________
561291B.I-9/9/2008 45 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 7--Transitional Provisions
s. 56
PART 7--TRANSITIONAL PROVISIONS
56 Definitions
In this Part--
commencement day means the day this section
5 commences;
intervention order means an order made under
section 4 of the repealed Act of a kind
referred to in section 21A(5) of the Crimes
Act 1958;
10 new Act means the Stalking Intervention Orders
Act 2008;
repealed Act means the Crimes (Family
Violence) Act 1987.
57 References to repealed Act
15 On and from the commencement day, a reference
in an Act (other than this Act or the Family
Violence Protection Act 2008) or a document to
the repealed Act is taken, if the context permits, to
be a reference to the new Act.
20 58 Intervention orders
(1) On and from the commencement day, an
intervention order made under the repealed Act
(including an intervention order made in
proceedings referred to in section 60) is taken to
25 be a final order made under the new Act.
(2) Without limiting subsection (1), the intervention
order--
(a) continues subject to any restriction or
prohibition included in the order as if the
30 restriction or prohibition had been included
in the order under the new Act; and
561291B.I-9/9/2008 46 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 7--Transitional Provisions
s. 59
(b) may be revoked, varied or extended under
the new Act as if it had been made under that
Act.
59 Interim orders
5 (1) On and from the commencement day, an interim
order made under the repealed Act (including an
interim order made in proceedings referred to in
section 60) is taken to be an interim order made
under the new Act.
10 (2) If, immediately before the commencement day--
(a) an interim order had been made under the
repealed Act in relation to a complaint for an
intervention order; but
(b) proceedings for the final hearing of that
15 complaint had not yet started--
the proceedings for the final hearing of the
complaint may proceed under the new Act as if it
were an application made under the new Act and
the interim order were an interim order made
20 under that Act.
60 Complaints and applications
(1) This section applies if, immediately before the
commencement day, a complaint for an
intervention order or interim order or an
25 application for the variation, revocation or
extension of an intervention order or interim order
had been made under the repealed Act but a
proceeding in relation to the complaint or
application had not yet started.
30 (2) On and from the commencement day, the
complaint or application may be dealt with under
the new Act as an application for an intervention
order or the variation, revocation or extension of
an order as if it were an application made under
35 that Act.
561291B.I-9/9/2008 47 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 7--Transitional Provisions
s. 61
(3) Section 7A(2) of the repealed Act continues to
apply to a police officer in relation to a complaint
or application made by that police officer under
the repealed Act, or in relation to the police
5 officer representing another police officer at a
hearing in accordance with section 7A(1) of that
Act, as if section 7A of the repealed Act had not
been repealed.
61 Proceedings
10 (1) This section applies if, immediately before the
commencement day--
(a) proceedings under the repealed Act for an
intervention order or interim order, or the
variation, revocation or extension of an
15 order, had started but had not yet been
finalised; or
(b) an appeal under section 20 or 21 of the
repealed Act had been started but had not yet
been finalised; or
20 (c) proceedings for an offence against section 22
of the repealed Act had started but had not
yet been finalised.
(2) The proceeding may continue under the repealed
Act as if that Act had not been repealed.
25 62 Interstate and New Zealand orders
(1) An interstate summary protection order made on
grounds corresponding to section 21A(5) of the
Crimes Act 1958 registered with the court before
the commencement day is taken, on and from the
30 commencement day, to be registered under the
new Act as a corresponding interstate order.
561291B.I-9/9/2008 48 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 7--Transitional Provisions
s. 62
(2) A New Zealand protection order made on grounds
corresponding to section 21A(5) of the Crimes
Act 1958 registered with the court before the
commencement day is taken, on and from the
5 commencement day, to be registered under the
new Act as a corresponding New Zealand order.
__________________
561291B.I-9/9/2008 49 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 8--Consequential Amendments
s. 63
PART 8--CONSEQUENTIAL AMENDMENTS
Division 1--Amendment to the Bail Act 1977
63 Entitlement to bail
See: After section 4(4)(ba) of the Bail Act 1977
Act No.
5 9008. insert--
Reprint No. 9
as at "(bb) with an offence against section 32 of the
23 April 2007
and
Stalking Intervention Orders Act 2008 of
amending contravening an order in the course of
Act No.
97/2005.
committing which the accused person is
10 LawToday: alleged to have used or threatened to use
www.
legislation.
violence and--
vic.gov.au
(i) the accused person has within the
preceding 10 years been convicted or
found guilty of an offence in the course
15 of committing which he or she used or
threatened to use violence against any
person; or
(ii) the court is satisfied that the accused
person on a separate occasion used or
20 threatened to use violence against the
person who is the subject of the order,
whether or not the accused person has
been convicted or found guilty of, or
charged with, an offence in connection
25 with that use or threatened use of
violence; or".
561291B.I-9/9/2008 50 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 8--Consequential Amendments
s. 64
Division 2--Amendments to the Children, Youth and
Families Act 2005
64 Definition of child
Before paragraph (b) of the definition of child in See:
Act No.
5 section 3(1) of the Children, Youth and Families 96/2005.
Act 2005 insert-- Reprint No. 1
as at
23 April 2007
"(ab) in the case of a proceeding under the and
Stalking Intervention Orders Act 2008, a amending
Act Nos
person who is under the age of 18 when an 97/2005,
10 application is made under that Act; and". 23/2006,
24/2006,
51/2006,
81/2006,
24/2007,
28/2007,
56/2007,
7/2008, 8/2008,
9/2008 and
12/2008.
LawToday:
www.
legislation.
vic.gov.au
65 Jurisdiction of the Family Division
At the end of section 515(2) of the Children,
Youth and Families Act 2005, after "2008"
insert "or the Stalking Intervention Orders Act
15 2008".
66 Jurisdiction of the Neighbourhood Justice Division
(1) In section 520C(3)(b)(iii) of the Children, Youth
and Families Act 2005, for "district." substitute
"district;".
561291B.I-9/9/2008 51 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 8--Consequential Amendments
s. 67
(2) After section 520C(3)(b) of the Children, Youth
and Families Act 2005 insert--
"(c) in the case of a proceeding under the
Stalking Intervention Orders Act 2008--
5 (i) at least one of the parties resides in the
municipal district; or
(ii) at least one of the parties is--
(A) a homeless person; or
(B) an Aboriginal person with a close
10 connection to the municipal
district--
and the Court considers that it is
appropriate to deal with the matter in
the Neighbourhood Justice Division; or
15 (iii) the whole or a material part of the
alleged stalking occurred in the
municipal district.".
(3) In section 520C(4)(d) of the Children, Youth
and Families Act 2005, after "2008" insert "or
20 the Stalking Intervention Orders Act 2008".
Division 3--Amendments to the Corrections Act 1986
67 Home detention
See: After section 60A(d) of the Corrections Act 1986
Act No.
117/1986. insert--
Reprint No. 7
25 as at "(da) a contravention of a final order under the
18 October
2007
Stalking Intervention Orders Act 2008 or
and an order of a corresponding nature made in
amending
Act Nos
another State or a Territory; or".
53/2007,
12/2008 and
21/2008.
LawToday:
www.
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vic.gov.au
561291B.I-9/9/2008 52 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 8--Consequential Amendments
s. 68
68 Contents of home detention assessment report
After section 60E(1)(l) of the Corrections Act
1986 insert--
"(la) an assessment of the likelihood that the
5 prisoner will commit an offence in respect of
which a final order could be made under the
Stalking Intervention Orders Act 2008;".
Division 4--Amendments to the Crimes Act 1958
69 Stalking
10 (1) Sections 21A(5) and 21A(5A) of the Crimes Act See:
Act No.
1958 are repealed. 6231.
Reprint No. 20
(2) At the foot of section 21A of the Crimes Act as at
1 July 2008
1958 insert-- and
amending
"Note Act Nos
15 Section 7 of the Stalking Intervention Orders Act 2008 16/2004,
9/2008,
provides that the Court within the meaning of that Act may 12/2008,
make an intervention order in respect of stalking.". 24/2008 and
34/2008.
LawToday:
www.
legislation.
vic.gov.au
561291B.I-9/9/2008 53 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 8--Consequential Amendments
s. 70
Division 5--Amendments to the Firearms Act 1996
70 Definition
See: Before paragraph (c)(ii) of the definition of
Act No.
66/1996. prohibited person in section 3(1) of the Firearms
5 Reprint No. 4 Act 1996 insert--
as at
11 October
2006
"(ib) a final order under the Stalking
and Intervention Orders Act 2008 that does not
amending
Act Nos
cancel or suspend a licence, permit or
78/2005, authority under this Act, or an order of a
97/2005,
10 23/2006,
corresponding nature made in another State
48/2006, or a Territory; or
28/2007,
50/2007, (ic) a final order under the Stalking
12/2008,
21/2008 and Intervention Orders Act 2008 that does
34/2008. cancel or suspend a licence, permit or
LawToday:
15 www. authority under this Act, or an order of a
legislation. corresponding nature made in another State
vic.gov.au
or a Territory; or".
71 Immediate cancellation of a licence
In section 46 of the Firearms Act 1996, after
20 "paragraph (c)(i)" insert "or (c)(ib)".
72 Suspension of licence--certain prohibited persons
In section 47A(1) of the Firearms Act 1996, after
"paragraph (c)(i)" insert "or (c)(ib)".
73 Power of Chief Commissioner to cancel licence
25 under this Part
(1) For section 49(4) of the Firearms Act 1996
substitute--
"(4) The Chief Commissioner must cancel a
licence that has been suspended under
30 section 47A(1) on the expiry of 3 months
after the suspension of the licence, unless the
holder of the licence makes an application
under section 189 before the expiry of the
561291B.I-9/9/2008 54 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 8--Consequential Amendments
s. 74
3 month period for a declaration referred to
in--
(a) section 189(1)(a) or (1)(b); or
(b) section 189(1AA)(a) or (1AA)(b).".
5 (2) In section 49(5)(a) of the Firearms Act 1996,
before "; or" insert "or (1AA)(a)".
(3) In section 49(5)(b) of the Firearms Act 1996,
before "deeming" insert "or (1AA)(b)".
74 Surrender of firearms and licence document
10 Before section 53(4)(b) of the Firearms Act 1996
insert--
"(ab) if the surrender or seizure is as a
consequence of the making of a final order
under the Stalking Intervention Orders
15 Act 2008--
(i) within 3 months of making the order; or
(ii) if an application for a declaration under
section 189 has been made within
3 months of the making of the order,
20 within 28 days of a decision not to
make that declaration; or".
75 Application to be deemed not to be prohibited
person
(1) After section 189(1) of the Firearms Act 1996,
25 insert--
"(1AA) A person who is a prohibited person
referred to in paragraph (c)(ib) of the
definition of prohibited person in
section 3(1) may apply to the Court for
30 a declaration that the person--
561291B.I-9/9/2008 55 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 8--Consequential Amendments
s. 76
(a) is deemed not to be a prohibited person
by virtue of being or having been
subject to an order of a kind referred to
in that paragraph; or
5 (b) is so deemed for limited purposes
only.".
(2) In section 189(2A)(c) of the Firearms Act 1996,
after "subsection (1)" insert "or (1AA)".
(3) In section 189(2B)(b) Firearms Act 1996, after
10 "subsection (1)" insert "or (1AA)".
(4) In section 189(3)(a) Firearms Act 1996, after
"subsection (1)" insert "or (1AA)".
(5) At the end of section 189 of the Firearms Act
insert--
15 "(5) In the case of an application under
subsection (1AA), the Court cannot hear the
application until any appeal under the
Stalking Intervention Orders Act 2008 in
relation to the final order has been
20 determined.".
76 New section 214 inserted
At the end of Part 12 of the Firearms Act 1996
insert--
"214 Transitional Provisions--Stalking Orders
25 Intervention Act 2008
(1) In this section--
intervention order means an intervention
order of a kind referred to in section
21A(5) of the Crimes Act 1958;
30 the 2008 Act means the Stalking
Intervention Orders Act 2008.
561291B.I-9/9/2008 56 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 8--Consequential Amendments
s. 76
(2) Despite the commencement of Part 8 of the
2008 Act, section 47A continues to apply in
respect of a suspension under that section in
force immediately before the commencement
5 of that Part.
(3) If, before the commencement of section 74
of the 2008 Act, firearms or cartridge
ammunition were surrendered or seized
under section 53 as a consequence of the
10 making of an intervention order under the
Crimes (Family Violence) Act 1987, the
person must dispose of the firearm or
ammunition in accordance with section 53(4)
within 3 months of the making of the order,
15 as if the surrender or seizure had happened
after the commencement of section 74.
(4) If, before the commencement of Part 8 of the
2008 Act--
(a) a person had applied for a declaration
20 under section 189(1); and
(b) that application had not been
determined--
section 189 as in force immediately before
the commencement of Part 8 of the 2008 Act
25 continues to apply to the determination of the
application.
(5) The amendments made to this Act by the
2008 Act do not affect any declaration made
under section 189(1) before the
30 commencement of Part 8 of the 2008 Act.".
561291B.I-9/9/2008 57 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 8--Consequential Amendments
s. 77
Division 6--Amendment to the Health Records Act 2001
77 Definition
See: In section 3(1) of the Health Records Act 2001,
Act No.
2/2001. before paragraph (d) of the definition of law
5 Reprint No. 1 enforcement function insert--
as at
19 February
2004
"(ca) the prevention, detection or investigation of
and conduct that could found an application for
amending
Act Nos
an intervention order under the Stalking
108/2004, Intervention Orders Act 2008;".
18/2005,
97/2005,
23/2006,
28/2007 and
12/2008.
LawToday:
www.
legislation.
vic.gov.au
10 Division 7--Amendments to the Magistrates' Court Act 1989
78 Definition
See: In section 3(1) of the Magistrates' Court Act
Act No.
51/1989. 1989 in the definition of proper venue--
Reprint No. 14
as at (a) in paragraph (d), after "2008" insert "or the
21 August
15 2008
Stalking Intervention Orders Act 2008";
and
amending (b) before paragraph (e) insert--
Act Nos
77/2004, "(db) in relation to a proceeding under the
51/2006, Stalking Intervention Orders Act
12/2008 and
34/2008. 2008, means--
LawToday:
20 www. (i) a venue of the court determined in
legislation.
vic.gov.au
accordance with paragraph (b), (d)
or (e); or
(ii) the civil registry court that is
nearest to the place of permanent
25 or temporary residence of the
561291B.I-9/9/2008 58 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 8--Consequential Amendments
s. 79
affected person (within the
meaning of that Act); and".
79 Koori Court Division
In section 4F(1)(b) of the Magistrates' Court Act
5 1989--
(a) in subparagraph (ii), for "; and" substitute
"; or";
(b) after subparagraph (ii) insert--
"(iii) a contravention of an intervention order
10 under the Stalking Intervention
Orders Act 2008 or an offence arising
out of the same conduct as that out of
which the contravention arose; and".
80 Neighbourhood Justice Division
15 (1) After section 4O(2)(a) of the Magistrates' Court
Act 1989 insert--
"(ab) in the case of a proceeding under the
Stalking Intervention Orders Act 2008--
(i) at least one of the parties resides in the
20 municipal district; or
(ii) at least one of the parties is--
(A) a homeless person; or
(B) an Aborigine with a close
connection to the municipal
25 district--
and the Court considers that it is
appropriate to deal with the matter in
the Neighbourhood Justice Division; or
(iii) the whole or a material part of the
30 alleged stalking occurred in the
municipal district;".
561291B.I-9/9/2008 59 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 8--Consequential Amendments
s. 81
(3) After section 4O(3)(d) of the Magistrates' Court
Act 1989 insert--
"(da) the jurisdiction of the Court given by the
Stalking Intervention Orders Act 2008;
5 and".
Division 8--Amendment to the Police Regulation Act 1958
81 Reportable offences
See: In the First Schedule to the Police Regulation Act
Act No.
6338. 1958, before item 3.3 insert--
Reprint No. 12
10 as at "3.2A An offence under section 32 of the Stalking
14 July 2008
and
Intervention Orders Act 2008.".
amending
Act Nos
30/2007,
4/2008 and
34/2008.
LawToday:
www.
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vic.gov.au
Division 9--Amendments to the Sentencing Act 1991
82 Home detention
See: Before section 18ZV(e) of the Sentencing Act
Act No.
15 49/1991. 1991 insert--
Reprint No. 10
as at "(da) a contravention of a final order under the
23 April 2007
and
Stalking Intervention Orders Act 2008, or
amending an order of a corresponding nature made in
Act Nos
97/2005,
another State or a Territory; or".
23/2006,
24/2006,
56/2007,
7/2008, 8/2008,
12/2008,
18/2008 and
21/2008.
LawToday:
www.
legislation.
vic.gov.au
561291B.I-9/9/2008 60 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Part 8--Consequential Amendments
s. 83
83 Contents of home detention assessment report
Before section 99G(1)(m) of the Sentencing Act
1991 insert--
"(la) an assessment of the likelihood that the
5 offender will commit an offence in respect of
which a final order could be made under the
Stalking Intervention Orders Act 2008;".
561291B.I-9/9/2008 61 BILL LA INTRODUCTION 9/9/2008
Stalking Intervention Orders Bill 2008
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria
561291B.I-9/9/2008 62 BILL LA INTRODUCTION 9/9/2008
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