Family Violence Protection Amendment Act 2014
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Family Violence Protection Amendment Act 2014
No. 77 of 2014
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2—AMENDMENT OF FAMILY VIOLENCE
PROTECTION ACT 2008 3
3 Definitions 3
4 Meaning of family violence intervention order, final order
and interim order 4
5 Application for family violence safety notice 4
6 Family violence safety notice taken to be application for
family violence intervention order 4
7 Application may be made by electronic communication 4
8 New sections 56A to 56C inserted 5
56A Interim order may include condition about final order 5
56B When finalisation condition ceases to have effect 7
56C Certain interim orders not to include finalisation
condition 8
9 Explanation of interim order 9
10 Interim order made on electronic application 11
11 Hearing to be listed for decision about final order as soon as
practicable 11
12 Expiry of interim order 11
13 New section 78A inserted 11
78A Final order taken to be made—interim order including
finalisation condition 11
14 Application made by respondent for variation or revocation of
family violence intervention order 12
15 Rehearing of certain proceeding 12
16 Contravention of family violence intervention order 13
17 Division 1 heading inserted in Part 8 13
18 Restriction on publication of proceedings in Magistrates' Court 13
19 New section 169 substituted 14
169 Court may allow publication of locality, particulars or
picture 14
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20 New Division 2 inserted in Part 8 14
Division 2—Exception for publication by or with consent
of adult victim 14
169A Interpretation 14
169B Exception to restriction on publication by or with
consent of adult victim 17
169C S ubsequent publication 18
21 Service of family violence intervention orders 19
22 Rule making powers 19
23 New Division 9 of Part 14 inserted 19
Division 9—Family Violence Protection Amendment Act
2014 20
226 Transitional provisions—Family Violence Protection
Amendment Act 2014 20
PART 3—AMENDMENT OF PERSONAL SAFETY
INTERVENTION ORDERS ACT 2010 21
24 Definitions 21
25 Restriction on publication of proceedings in Magistrates' Court 22
26 New section 125A inserted 22
125A Court may allow publication of locality, particulars or
picture 22
27 Rule making powers 23
PART 4—REPEAL OF AMENDING ACT 24
28 Repeal of amending Act 24
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ENDNOTES 25
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Authorised by the Chief Parliamentary Counsel
Authorised Version
1
Family Violence Protection Amendment
Act 2014 †
No. 77 of 2014
[Assented to 21 October 2014]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
The main purposes of this Act are—
(a) to amend the Family Violence Protection
Act 2008—
(i) to provide for interim family violence
intervention orders to become final
orders without further hearing; and
Victoria
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No. 77 of 2014
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(ii) to extend the operation of family
violence safety notices; and
(iii) in relation to the publication of
proceedings; and
(b) to amend the Personal Safety Intervention
Orders Act 2010 in relation to the
publication of proceedings.
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 18 September 2015, it comes into
operation on that day.
__________________
s. 2 s. 2
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PART 2—AMENDMENT OF FAMILY VIOLENCE
PROTECTION ACT 2008
3 Definitions
(1) In section 4 of the Family Violence Protection
Act 2008, in the definition of weapons exemption,
for "persons." substitute "persons;".
(2) In section 4 of the Family Violence Protection
Act 2008 insert the following definitions—
"finalisation condition has the meaning given by
section 56A;
working day, in relation to a court, means a day
other than a Saturday, a Sunday or a day
appointed as a public holiday under the
Public Holidays Act 1993.".
(3) In section 4 of the Family Violence Protection
Act 2008, for the definition of publish
substitute—
"publish means disseminate or provide access to
the public or a section of the public by any
means, including by—
(a) publication in a book, newspaper,
magazine or other written publication;
or
(b) broadcast by radio or television; or
(c) public exhibition; or
(d) broadcast or electronic
communication—
and publication must be construed
accordingly;".
See:
Act No.
52/2008.
Reprint No. 2
as at
21 August
2013
and
amending
Act Nos
52/2013,
77/2013,
17/2014 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
s. 3
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4 Meaning of family violence intervention order, final
order and interim order
In section 11(2) of the Family Violence
Protection Act 2008, after "section 74 or 76"
(wherever occurring) insert "or taken to have
been made under section 78A".
5 Application for family violence safety notice
In section 24 of the Family Violence Protection
Act 2008—
(a) in paragraph (e)(iii) for "respondent; and"
substitute "respondent.";
(b) paragraph (f) is repealed.
6 Family violence safety notice taken to be application
for family violence intervention order
For section 31(3) of the Family Violence
Protection Act 2008 substitute—
"(3) The first mention date for the application
must be—
(a) if the family violence safety notice
includes an exclusion condition, as
soon as practicable; and
(b) in any case, not later than 5 working
days after the family violence safety
notice or form of notice completed
under section 27(3) is served.".
7 Application may be made by electronic
communication
For section 44(4) of the Family Violence
Protection Act 2008 substitute—
"(4) The application completed under
subsection (3) must be filed by the police
officer with the court—
s. 4
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(a) if the application was made by
telephone, fax or other electronic
communication and an interim order
including a finalisation condition was
made, as soon as practicable; and
(b) in any other case, before the first
mention date for the application.".
8 New sections 56A to 56C inserted
After section 56 of the Family Violence
Protection Act 2008 insert—
"56A Interim order may include condition
about final order
(1) Subject to section 56C, if the court makes an
interim order, the court may include a
condition (a finalisation condition)
providing that the interim order becomes a
final order, with the same conditions as the
interim order, 28 days after being served on
the respondent, if the court is satisfied that it
would be appropriate in all of the
circumstances to include the condition.
(2) Without limiting subsection (1), in
considering whether it is appropriate to
include a finalisation condition, the court
must have regard to the following—
(a) whether there is a history of family
violence;
(b) the existence of recognised family
violence risk factors;
(c) the existence of—
(i) other proceedings between the
parties under this Act; or
(ii) other proceedings between the
affected family member and any
s. 8
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other person or persons under this
Act; or
(iii) other legal proceedings that may
affect the conditions or operation
of the family violence intervention
order;
Examples
1 Proceedings relating to a child
protection order.
2 Family Law Act proceedings.
3 Criminal proceedings.
(d) the views of the police officer or other
person (if applicable) who made the
application for the affected family
member as to the inclusion of the
finalisation condition;
() whether the affected family member
has obtained legal advice;
() whether the giving or service of the
interim order and the giving of the
explanation of the interim order under
section 57(1) will enable the particular
affected family member and respondent
to sufficiently understand the matters
set out in section 57(1);
() the existence of factors making it
desirable that the particular respondent
attend a hearing for the final order.
(3) If the court includes a finalisation condition,
the court must specify a period for which the
final order is to be in force, having regard
to the matters referred to in section 97(2)
and (3).
s. 8
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(4) A finalisation condition does not take effect
if the respondent cannot be served personally
with the interim order.
56B When finalisation condition ceases to have
effect
(1) A finalisation condition ceases to have effect
within the 28 day period after the interim
order is served on the respondent on the first
of the following occurring—
(a) if the respondent files a notice to
contest the application for the family
violence intervention order, on the
filing of the notice;
(b) if the applicant or the protected person
seeks to withdraw the application for
the family violence intervention order
within that period, on the filing of a
written notice of withdrawal or the
making of an oral application to the
court for the withdrawal, whichever is
applicable;
(c) if an application is made to vary or
revoke the interim order, on the making
of the application;
(d) if the interim order is varied by the
court on its own motion, at the time the
order is varied.
(2) If the finalisation condition ceases to have
effect, the interim order continues in force
until it ends in accordance with section 60.
(3) As soon as practicable after the finalisation
condition ceases to have effect, the court
must—
(a) ensure the application is listed as soon
as practicable; and
s. 8
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(b) give notice to the parties.
56C Certain interim orders not to include
finalisation condition
(1) The court must not include a finalisation
condition in an interim order if—
(a) the court reasonably suspects that the
respondent is a child; or
(b) the court reasonably suspects that the
respondent has a cognitive impairment;
or
(c) the court reasonably suspects that the
respondent—
(i) holds a firearms authority, or
weapons approval or exemption;
or
(ii) is in possession of a firearm or
prohibited weapon; or
(d) the court is satisfied that there is a
Family Law Act order in force in
relation to a child of the affected family
member or respondent and the interim
order would be inconsistent with the
Family Law Act order; or
Note
See sections 89 and 90.
(e) the affected family member does not
consent to inclusion of a finalisation
condition.
(2) If the court is a relevant court within the
meaning of section 126, the court must not
include a finalisation condition in an interim
order if satisfied that, on making a final
order, it may be required to make an order
under section 129.
s. 8
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(3) The court must not include a finalisation
condition in an interim order made under
section 173.".
9 Explanation of interim order
For section 57(1) of the Family Violence
Protection Act 2008 substitute—
"(1) If a court makes an interim order, the
appropriate registrar of the court must give
the respondent and the affected family
member a written explanation of the order
that explains the following matters—
(a) the purpose, terms and effect of the
interim order;
(b) the consequences and penalties that
may follow if the respondent fails to
comply with the terms of the interim
order;
(c) for the respondent, that the interim
order is a civil order of the court and
the affected family member cannot give
permission to contravene the interim
order;
(d) how the order interacts with a Family
Law Act order or an order under the
Children, Youth and Families Act
2005;
(e) if the court has varied, suspended,
revoked or revived a Family Law Act
order because it is inconsistent with the
interim order, the purpose, terms and
effect of the variation or suspension;
s. 9 s. 9
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(f) any relevant family violence services
offering legal, emotional or practical
support that may be available to the
affected family member or respondent;
(g) if the interim order does not include a
finalisation condition—
(i) when the interim order expires
and the means by which the
interim order may be varied; and
(ii) the process for deciding the final
order;
(h) if the interim order includes a
finalisation condition—
(i) that the interim order will become
a final order 28 days after it is
served on the respondent; and
(ii) the circumstances in which the
interim order will not become a
final order; and
(iii) the consequences of the interim
order becoming a final order,
including the effect on any
firearms authority or weapons
approval held by the respondent or
weapons exemption which applies
to the respondent.
(1A) A written explanation under subsection (1) in
respect of an interim order that includes a
finalisation condition may change the
explanation required by subsection (1)(a)
to (e) to accord with the effect of that
condition.".
s. 9
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10 Interim order made on electronic application
For section 58(c) and (d) of the Family Violence
Protection Act 2008 substitute—
"(c) if the interim order does not include a
finalisation condition—
(i) the venue of the court for the first
mention date for the application for the
family violence intervention order; and
(ii) the date and time of the first mention
date for the application for the family
violence intervention order.".
11 Hearing to be listed for decision about final order as
soon as practicable
In section 59 of the Family Violence Protection
Act 2008, after "interim order" insert "that does
not include a finalisation condition".
12 Expiry of interim order
At the end of section 60 of the Family Violence
Protection Act 2008 insert—
"(2) This section does not apply to an interim
order that includes a finalisation condition,
unless that condition has ceased to have
effect under section 56B.".
13 New section 78A inserted
After section 78 of the Family Violence
Protection Act 2008 insert—
"78A Final order taken to be made—interim
order including finalisation condition
(1) If an interim order becomes a final order by
effect of a finalisation condition, for the
purposes of this Act—
(a) the court is taken to have made a final
order; and
s. 10
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(b) the final order is taken to be made on
the day after the day that is 28 days
after the order was served on the
respondent; and
(c) the interim order ends.
(2) Section 96 does not apply to a final order
taken to be made under subsection (1).".
14 Application made by respondent for variation or
revocation of family violence intervention order
After section 109(2) of the Family Violence
Protection Act 2008 insert—
"(3) Despite subsection (2), the court may grant
leave under subsection (1) for the variation
or revocation of a final order taken to have
been made under section 78A if—
(a) within 28 days of being served with the
interim order, the respondent did not
file a notice to contest the application
or apply for a variation or revocation of
the interim order; and
(b) the court is satisfied that there are
exceptional circumstances that justify
granting leave.".
15 Rehearing of certain proceeding
For section 122(2) of the Family Violence
Protection Act 2008 substitute—
"(2) If the court is satisfied, on the balance of
probabilities, that the grounds referred to in
subsection (1) have been established—
(a) the court may rehear the matter; or
(b) if the final order is taken to have been
made under section 78A, the court may
hear the matter for decision about a
final order.".
s. 14
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16 Contravention of family violence intervention order
(1) After section 123(1)(a) of the Family Violence
Protection Act 2008 insert—
"(ab) in the case of an order that is taken to have
been made under section 78A, has been
served with a copy of the interim order
including the finalisation condition; or".
(2) After section 123A(2)(a) of the Family Violence
Protection Act 2008 insert—
"(ab) in the case of an order that is taken to have
been made under section 78A, has been
served with a copy of the interim order
including the finalisation condition; or".
17 Division 1 heading inserted in Part 8
Before section 166 of the Family Violence
Protection Act 2008 insert—
"Division 1—General restriction on
publication".
18 Restriction on publication of proceedings in
Magistrates' Court
In section 166(2)(a) of the Family Violence
Protection Act 2008 for "order; and"
substitute—
"order—
unless the court orders under section 169 that the
locality or particulars may be published; or".
s. 16
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19 New section 169 substituted
For section 169 of the Family Violence
Protection Act 2008 substitute—
"169 Court may allow publication of locality,
particulars or picture
(1) The court may make an order allowing the
publication of a locality, particulars or
picture only if—
(a) the court reasonably considers it is in
the public interest to allow the
publication of the locality, particulars
or picture; and
(b) the court reasonably considers it is just
to allow the publication in the
circumstances.
Example
The court may consider it in the public interest and
just to allow a protected person to publicise the
person's case to raise awareness of family violence.
(2) Before making an order under this section in
relation to a child who is a party to or a
witness in the proceeding, or who is a person
who is the subject of the order, in respect of
which publication is sought, the court must
have regard to the views of any parent or
guardian of the child.".
20 New Division 2 inserted in Part 8
After section 169 of the Family Violence
Protection Act 2008 insert—
"Division 2—Exception for publication by or
with consent of adult victim
169A Interpretation
(1) In this Division—
s. 19
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adult victim means an adult who—
(a) is a protected person under a
family violence safety notice or a
family violence intervention
order; and
(b) was a victim in relation to a
relevant offence or an alleged
relevant offence;
permitted content, in relation to a report
relating to a family violence safety
notice or family violence intervention
order, means all or any of the
following—
(a) the fact that the family violence
safety notice or family violence
intervention order applies to a
person who has been charged with
or convicted or found guilty of a
relevant offence;
(b) the fact that an adult victim is
identified in the report as—
(i) a protected person in relation
to the family violence safety
notice or family violence
intervention order; and
(ii) a victim of a relevant offence
or an alleged relevant
offence;
(c) the types of restrictions imposed
by the conditions of the family
violence safety notice or family
violence intervention order;
(d) the details of and conduct
constituting a relevant offence or
alleged relevant offence;
s. 20
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post-notice or order offence, in relation to a
family violence safety notice or family
violence intervention order, means—
(a) a contravention of the family
violence safety notice or family
violence intervention order under
section 37, 37A, 123, 123A
or 125A; or
(b) any other offence where the
conduct constituting the offence
would constitute a contravention
of the family violence safety
notice or family violence
intervention order under
section 37, 37A, 123, 123A
or 125A;
pre-notice or order offence, in relation to a
family violence safety notice or family
violence intervention order, means an
offence where the conduct that
constituted the offence—
(a) led to the making of the family
violence safety notice or family
violence intervention order; and
(b) would have constituted a
contravention of the family
violence safety notice or family
violence intervention order under
section 37, 37A, 123, 123A
or 125A if the notice or order had
been in place at the time of the
offence;
relevant offence means—
(a) a pre-notice or order offence; or
(b) a post-notice or order offence.
s. 20 s. 20
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(2) For the purposes of this Division a charge
against a person for an offence is pending
until the charge is finally dealt with in any of
the following ways—
(a) the charge is withdrawn or the person
dies without the charge having been
determined;
(b) the charge is dismissed by a court;
(c) the person is discharged by a court
following a committal hearing;
(d) the person is acquitted or found guilty
of the offence by a court.
169B Exception to restriction on publication by
or with consent of adult victim
(1) Section 166(2) does not apply to the
publication in accordance with this section
and in the prescribed circumstances of
permitted content in a report relating to a
family violence safety notice or family
violence intervention order by—
(a) an adult victim who is or was protected
by the notice or order; or
(b) a person who has the consent in writing
or recorded form of an adult victim
protected by the notice or order to the
publication.
(2) An adult victim cannot consent to the
identification of any other person protected
by the family violence safety notice or
family violence intervention order or as
being involved in a proceeding relating to the
notice or order.
s. 20
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(3) An adult victim may withdraw the consent to
the publication of a report at any time before
publication of the report.
(4) A person is not permitted to publish a report
on the basis of the consent of an adult victim
after the consent is withdrawn unless the
person did not have a reasonable opportunity
to prevent publication after the consent was
withdrawn.
(5) The prescribed circumstances in which a
report can be published are as follows—
(a) a family violence safety notice or
family violence intervention order is or
was in place that—
(i) protects or protected the adult
victim; and
(ii) applies or applied to a person who
has been charged with or
convicted or found guilty of a
relevant offence; and
(b) in relation to the charge for a relevant
offence, the charge was still pending at
the time of publication; and
(c) in relation to a conviction or finding of
guilt for a relevant offence, the
conviction or finding had not been set
aside or quashed at the time of
publication.
169C Subsequent publication
Section 166(2) does not apply to the
publication by a person of permitted content
in a report relating to a family violence
safety notice or family violence intervention
order (the subsequent report) if—
s. 20
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(a) the subsequent report is published after
the publication in accordance with
section 169B of a report relating to
the family violence safety notice or
family violence intervention order
(the original report); and
(b) if the original report was not published
by an adult victim, the person who
publishes the subsequent report
reasonably believes at the time of
publication of the subsequent report
that the original report was published
with the consent of the adult victim.".
21 Service of family violence intervention orders
At the end of section 201 of the Family Violence
Protection Act 2008 insert—
"(2) Despite subsection (1)(b) or (c), a copy of a
final order that is taken to have been made
under section 78A is not required to be
served on the respondent or given to a person
listed in subsection (1)(c).".
22 Rule making powers
(1) After section 209(2)(f) of the Family Violence
Protection Act 2008 insert—
"(fa) forms, notices and written explanations;".
(2) After section 210(2)(f) of the Family Violence
Protection Act 2008 insert—
"(fa) forms, notices and written explanations;".
23 New Division 9 of Part 14 inserted
After Division 8 of Part 14 of the Family
Violence Protection Act 2008 insert—
s. 21
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"Division 9—Family Violence Protection
Amendment Act 2014
226 Transitional provisions—Family Violence
Protection Amendment Act 2014
(1) Sections 56A to 56C, as inserted by section 8
of the Family Violence Protection
Amendment Act 2014, apply to an
application for a family violence intervention
order made on or after the commencement of
section 8 of that Act.
(2) Section 31 as amended by section 6 of the
Family Violence Protection Amendment
Act 2014 applies only to family violence
safety notices issued on or after the
commencement of section 6 of that Act.".
__________________
s. 23
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PART 3—AMENDMENT OF PERSONAL SAFETY
INTERVENTION ORDERS ACT 2010
24 Definitions
(1) In section 4 of the Personal Safety Intervention
Orders Act 2010 in the definition of weapons
exemption, for "persons." substitute "persons;".
(2) In section 4 of the Personal Safety Intervention
Orders Act 2010, insert the following
definition—
"working day, in relation to a court, means a day
on which the court is open for normal
business.".
(3) In section 4 of the Personal Safety Intervention
Orders Act 2010, for the definition of publish
substitute—
"publish, in Part 6, means disseminate or provide
access to the public or a section of the public
by any means, including by—
(a) publication in a book, newspaper,
magazine or other written publication;
or
(b) broadcast by radio or television; or
(c) public exhibition; or
(d) broadcast or electronic
communication—
and publication must be construed
accordingly;".
See:
Act No.
53/2010
and
amending
Act Nos
53/2010,
16/2011,
20/2011,
48/2011,
65/2011,
52/2013,
77/2013 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
s. 24
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25 Restriction on publication of proceedings in
Magistrates' Court
(1) In section 123(2)(a) of the Personal Safety
Intervention Orders Act 2010, for "order; or"
substitute—
"order—
unless the court orders under section 125A that
the locality or particulars may be published; or".
(2) In section 123(2)(b) of the Personal Safety
Intervention Orders Act 2010, after "order"
insert ", unless the court orders under
section 125A that the picture may be published".
26 New section 125A inserted
After section 125 of the Personal Safety
Intervention Orders Act 2010 insert—
"125A Court may allow publication of locality,
particulars or picture
(1) The court may make an order allowing the
publication of a locality, particulars or a
picture only if—
(a) the court reasonably considers it is in
the public interest to allow the
publication of the locality, particulars
or picture; and
(b) the court reasonably considers it is just
to allow the publication in the
circumstances.
(2) Before making an order under this section
the court must have regard to the views of
any parent or guardian of the child.".
s. 25
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Part 3—Amendment of Personal Safety Intervention Orders Act 2010
Family Violence Protection Amendment Act 2014
No. 77 of 2014
23
Authorised by the Chief Parliamentary Counsel
27 Rule making powers
(1) After section 183(2)(f) of the Personal Safety
Intervention Orders Act 2010 insert—
"(fa) forms, notices and written explanations;".
(2) After section 184(2)(f) of the Personal Safety
Intervention Orders Act 2010 insert—
"(fa) forms, notices and written explanations;".
__________________
s. 27
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Part 4—Repeal of Amending Act
Family Violence Protection Amendment Act 2014
No. 77 of 2014
24
Authorised by the Chief Parliamentary Counsel
PART 4—REPEAL OF AMENDING ACT
28 Repeal of amending Act
This Act is repealed on 18 September 2016.
Note
The repeal of this Act does not affect the continuing
operation of the amendments made by it (see section 15(1)
of the Interpretation of Legislation Act 1984).
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s. 28
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Family Violence Protection Amendment Act 2014
No. 77 of 2014
25
Authorised by the Chief Parliamentary Counsel
ENDNOTES
† Minister's second reading speech—
Legislative Council: 20 August 2014
Legislative Assembly: 18 September 2014
The long title for the Bill for this Act was "A Bill for an Act to amend the
Family Violence Protection Act 2008 and the Personal Safety
Intervention Orders Act 2010 and for other purposes."
Endnotes
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