Stalking Intervention Orders Act 2008

i Stalking Intervention Orders Act 2008 No. 68 of 2008 TABLE OF PROVISIONS Section 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 -- 1 of 68 -- Section Page ii 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 -- 2 of 68 -- Section Page iii 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 -- 3 of 68 -- Section Page iv 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 INDEX 63 -- 4 of 68 -- 1 Stalking Intervention Orders Act 2008 † No. 68 of 2008 [Assented to 18 November 2008] 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. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day to be proclaimed. Victoria -- 5 of 68 -- Part 1—Preliminary Stalking Intervention Orders Act 2008 No. 68 of 2008 2 (2) If this Act does not come into operation before 1 October 2009, it comes into operation on that day. 3 Definitions In this Act— affected person means the person whose person or property is the subject of the application for, 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; 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 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' 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 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 County Court or Supreme Court; s. 3 -- 6 of 68 -- Part 1—Preliminary Stalking Intervention Orders Act 2008 No. 68 of 2008 3 firearms authority means a licence, permit or other authority under the Firearms Act 1996 to possess, carry or use firearms; 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; 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 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 (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; 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 (b) property that is situated in premises in which the person lives or works whether or not it is the person's property; and s. 3 -- 7 of 68 -- Part 1—Preliminary Stalking Intervention Orders Act 2008 No. 68 of 2008 4 (c) property that is being used by the person whether or not it is the person's property; 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 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; 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— (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 (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, 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 communication to any person a statement or other material— s. 4 -- 8 of 68 -- Part 1—Preliminary Stalking Intervention Orders Act 2008 No. 68 of 2008 5 (A) relating to the second person or any other person; or (B) purporting to relate to, or to originate from, the second person or any other person; (iv) causing an unauthorised computer 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; (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 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 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 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 reasonably be expected to arouse apprehension or fear in the second person for his or her own safety or that of any other person. s. 4 -- 9 of 68 -- Part 1—Preliminary Stalking Intervention Orders Act 2008 No. 68 of 2008 6 (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 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 (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 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, 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 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 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. s. 5 -- 10 of 68 -- Part 1—Preliminary Stalking Intervention Orders Act 2008 No. 68 of 2008 7 (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 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 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. (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 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 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' Court includes the Neighbourhood Justice Division of the Children's Court or Magistrates' Court (as the case requires). __________________ s. 6 -- 11 of 68 -- Part 2—Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 8 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 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 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. (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, 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 (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 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. s. 7 -- 12 of 68 -- Part 2—Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 9 (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 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— (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; (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; (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; (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; (g) cancel or, in the case of an interim order, suspend any firearms authority held by the respondent as provided by section 9. s. 8 -- 13 of 68 -- Part 2—Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 10 (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 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; (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 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. (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 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. 10 Duration of order (1) The court may specify in a final order a period for which the order is to remain in force. s. 9 -- 14 of 68 -- Part 2—Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 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 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 (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— (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 (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 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 Act or, with the leave of the court, by any other person. s. 11 -- 15 of 68 -- Part 2—Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 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. (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. (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, 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 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 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 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. s. 12 -- 16 of 68 -- Part 2—Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 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 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 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), 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. (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 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 (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 s. 13 -- 17 of 68 -- Part 2—Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 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 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— (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 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. (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— (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; (iv) the date on which and the time at which the order was made; and s. 14 -- 18 of 68 -- Part 2—Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 15 (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 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 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 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 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. __________________ s. 14 -- 19 of 68 -- Part 3—Procedures Relating to Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 16 PART 3—PROCEDURES RELATING TO INTERVENTION ORDERS Division 1—Procedures relating to applications for intervention orders 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 (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 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 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, 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. s. 15 -- 20 of 68 -- Part 3—Procedures Relating to Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 17 (4) For the avoidance of doubt, a magistrate may issue a warrant to arrest in the circumstances set out in subsection (2). Note 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. 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 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 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 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 Act. (2) The application must be served on the respondent by— (a) delivering a true copy of the application to the respondent personally; or s. 16 -- 21 of 68 -- Part 3—Procedures Relating to Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 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 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 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 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— (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 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 affected person or a police officer. s. 18 -- 22 of 68 -- Part 3—Procedures Relating to Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 19 (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— (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. (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 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. (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 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 relation to the affected persons who are children. s. 20 -- 23 of 68 -- Part 3—Procedures Relating to Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 20 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 (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 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— (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 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 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 order, including the effect of the order on any firearms authority held by the respondent; and s. 21 -- 24 of 68 -- Part 3—Procedures Relating to Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 21 (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 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 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. 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. (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 (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; (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; s. 24 -- 25 of 68 -- Part 3—Procedures Relating to Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 22 (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 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 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 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 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 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 or place of business with a person who apparently resides or works there and who apparently is not less than 16 years of age. s. 27 -- 26 of 68 -- Part 3—Procedures Relating to Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 23 (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 by any other means it considers appropriate; or (b) make an order for substituted service. 28 Variation, revocation or extension of order registered interstate (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 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 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 (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 (ii) each person who was a party to the proceedings; and s. 28 -- 27 of 68 -- Part 3—Procedures Relating to Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 24 (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; 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 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. Division 4—Appeals 30 Appeal by respondent (1) In this section— relevant decision means a decision of the court hearing the application— (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 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 relevant decision. s. 30 -- 28 of 68 -- Part 3—Procedures Relating to Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 25 (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 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 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; (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 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. (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). (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. s. 30 -- 29 of 68 -- Part 3—Procedures Relating to Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 26 (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 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 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— 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 (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. (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. (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— s. 31 -- 30 of 68 -- Part 3—Procedures Relating to Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 27 (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 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 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 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 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 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, 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— s. 31 -- 31 of 68 -- Part 3—Procedures Relating to Intervention Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 28 (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 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 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. 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. __________________ s. 32 -- 32 of 68 -- Part 4—Search of Premises and Seizure of Firearms Stalking Intervention Orders Act 2008 No. 68 of 2008 29 PART 4—SEARCH OF PREMISES AND SEIZURE OF FIREARMS 34 Entry and search of premises (1) A police officer may, without warrant, enter and 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 (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. (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— (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 (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 the firearm, firearms authority or ammunition to the police officer; or s. 34 -- 33 of 68 -- Part 4—Search of Premises and Seizure of Firearms Stalking Intervention Orders Act 2008 No. 68 of 2008 30 (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, 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) 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; 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 (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 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. (2) The police officer may, without warrant, enter and search— (a) any premises at which the person resides or has resided; or s. 36 -- 34 of 68 -- Part 4—Search of Premises and Seizure of Firearms Stalking Intervention Orders Act 2008 No. 68 of 2008 31 (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 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 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 (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, 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 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 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 assistants the police officer considers necessary— s. 37 -- 35 of 68 -- Part 4—Search of Premises and Seizure of Firearms Stalking Intervention Orders Act 2008 No. 68 of 2008 32 (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 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— (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), 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, 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 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 with the Magistrates' Court Act 1989 and in the prescribed form under that Act. s. 37 -- 36 of 68 -- Part 4—Search of Premises and Seizure of Firearms Stalking Intervention Orders Act 2008 No. 68 of 2008 33 (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. 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 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 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. (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 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 (b) give that person a copy of the execution copy of the warrant. s. 38 -- 37 of 68 -- Part 4—Search of Premises and Seizure of Firearms Stalking Intervention Orders Act 2008 No. 68 of 2008 34 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 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 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, 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 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 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 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 the order or, if there are no such directions, s. 40 -- 38 of 68 -- Part 4—Search of Premises and Seizure of Firearms Stalking Intervention Orders Act 2008 No. 68 of 2008 35 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 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 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; (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 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. (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 another Act—be forfeited or disposed of in accordance with that Act; or (b) otherwise—be returned to the person. s. 42 -- 39 of 68 -- Part 4—Search of Premises and Seizure of Firearms Stalking Intervention Orders Act 2008 No. 68 of 2008 36 (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. __________________ s. 42 -- 40 of 68 -- Part 5—Registration of Interstate and New Zealand Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 37 PART 5—REGISTRATION OF INTERSTATE AND NEW ZEALAND ORDERS Division 1—Interstate orders 43 Registration of corresponding interstate orders (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 (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 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). (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 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 s. 43 -- 41 of 68 -- Part 5—Registration of Interstate and New Zealand Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 38 (b) extend the period during which a registered corresponding interstate order has effect in Victoria; or (c) revoke the registration of a registered 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 made; (b) a person against whom a registered corresponding interstate order has been made; (c) a police officer; (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 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 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 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. s. 45 -- 42 of 68 -- Part 5—Registration of Interstate and New Zealand Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 39 (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, 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 (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 (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 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 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— (a) the registration is varied, discharged or extended accordingly; and s. 46 -- 43 of 68 -- Part 5—Registration of Interstate and New Zealand Orders Stalking Intervention Orders Act 2008 No. 68 of 2008 40 (b) the registrar must notify the Chief Commissioner of Police of the variation, discharge or extension. __________________ s. 47 -- 44 of 68 -- Part 6—Miscellaneous Stalking Intervention Orders Act 2008 No. 68 of 2008 41 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 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— (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 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)— 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 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 Act is a child, a person must not publish or cause to be published in a newspaper or by television or other means— s. 48 -- 45 of 68 -- Part 6—Miscellaneous Stalking Intervention Orders Act 2008 No. 68 of 2008 42 (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 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 (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 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 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 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 It is the intention of section 31 to alter or vary section 85 of the Constitution Act 1975. s. 50 -- 46 of 68 -- Part 6—Miscellaneous Stalking Intervention Orders Act 2008 No. 68 of 2008 43 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 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 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 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 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. (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. (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 s. 53 -- 47 of 68 -- Part 6—Miscellaneous Stalking Intervention Orders Act 2008 No. 68 of 2008 44 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 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 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 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 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 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 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. s. 54 -- 48 of 68 -- Part 6—Miscellaneous Stalking Intervention Orders Act 2008 No. 68 of 2008 45 (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 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, 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 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 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 or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act. __________________ s. 55 -- 49 of 68 -- Part 7—Transitional Provisions Stalking Intervention Orders Act 2008 No. 68 of 2008 46 PART 7—TRANSITIONAL PROVISIONS 56 Definitions In this Part— commencement day means the day this section 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; new Act means the Stalking Intervention Orders Act 2008; repealed Act means the Crimes (Family Violence) Act 1987. 57 References to repealed Act 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. 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 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 restriction or prohibition had been included in the order under the new Act; and s. 56 -- 50 of 68 -- Part 7—Transitional Provisions Stalking Intervention Orders Act 2008 No. 68 of 2008 47 (b) may be revoked, varied or extended under the new Act as if it had been made under that Act. 59 Interim orders (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. (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 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 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 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. (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 that Act. s. 59 -- 51 of 68 -- Part 7—Transitional Provisions Stalking Intervention Orders Act 2008 No. 68 of 2008 48 (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 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 (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 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 (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. 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 commencement day, to be registered under the new Act as a corresponding interstate order. s. 61 -- 52 of 68 -- Part 7—Transitional Provisions Stalking Intervention Orders Act 2008 No. 68 of 2008 49 (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 commencement day, to be registered under the new Act as a corresponding New Zealand order. __________________ s. 62 -- 53 of 68 -- Part 8—Consequential Amendments Stalking Intervention Orders Act 2008 No. 68 of 2008 50 PART 8—CONSEQUENTIAL AMENDMENTS Division 1—Amendment to the Bail Act 1977 63 Entitlement to bail After section 4(4)(ba) of the Bail Act 1977 insert— "(bb) with an offence against section 32 of the Stalking Intervention Orders Act 2008 of contravening an order in the course of committing which the accused person is alleged to have used or threatened to use violence and— (i) the accused person has within the preceding 10 years been convicted or found guilty of an offence in the course 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 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 with that use or threatened use of violence; or". s. 63 See: Act No. 9008. Reprint No. 9 as at 23 April 2007 and amending Act No. 97/2005. LawToday: www. legislation. vic.gov.au -- 54 of 68 -- Part 8—Consequential Amendments Stalking Intervention Orders Act 2008 No. 68 of 2008 51 Division 2—Amendments to the Children, Youth and Families Act 2005 64 Definition of child Before paragraph (b) of the definition of child in section 3(1) of the Children, Youth and Families Act 2005 insert— "(ab) in the case of a proceeding under the Stalking Intervention Orders Act 2008, a person who is under the age of 18 when an application is made under that Act; and". 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 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;". See: Act No. 96/2005. Reprint No. 1 as at 23 April 2007 and amending Act Nos 97/2005, 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 s. 64 -- 55 of 68 -- Part 8—Consequential Amendments Stalking Intervention Orders Act 2008 No. 68 of 2008 52 (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— (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 connection to the municipal 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 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 the Stalking Intervention Orders Act 2008". Division 3—Amendments to the Corrections Act 1986 67 Home detention After section 60A(d) of the Corrections Act 1986 insert— "(da) a contravention of a final order under the Stalking Intervention Orders Act 2008 or an order of a corresponding nature made in another State or a Territory; or". s. 67 See: Act No. 117/1986. Reprint No. 7 as at 18 October 2007 and amending Act Nos 53/2007, 12/2008 and 21/2008. LawToday: www. legislation. vic.gov.au -- 56 of 68 -- Part 8—Consequential Amendments Stalking Intervention Orders Act 2008 No. 68 of 2008 53 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 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 (1) Sections 21A(5) and 21A(5A) of the Crimes Act 1958 are repealed. (2) At the foot of section 21A of the Crimes Act 1958 insert— "Note Section 7 of the Stalking Intervention Orders Act 2008 provides that the Court within the meaning of that Act may make an intervention order in respect of stalking.". s. 68 See: Act No. 6231. Reprint No. 20 as at 1 July 2008 and amending Act Nos 16/2004, 9/2008, 12/2008, 24/2008 and 34/2008. LawToday: www. legislation. vic.gov.au -- 57 of 68 -- Part 8—Consequential Amendments Stalking Intervention Orders Act 2008 No. 68 of 2008 54 Division 5—Amendments to the Firearms Act 1996 70 Definition Before paragraph (c)(ii) of the definition of prohibited person in section 3(1) of the Firearms Act 1996 insert— "(ib) a final order under the Stalking Intervention Orders Act 2008 that does not cancel or suspend a licence, permit or authority under this Act, or an order of a corresponding nature made in another State or a Territory; or (ic) a final order under the Stalking Intervention Orders Act 2008 that does cancel or suspend a licence, permit or authority under this Act, or an order of a corresponding nature made in another State or a Territory; or". 71 Immediate cancellation of a licence In section 46 of the Firearms Act 1996, after "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 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 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 See: Act No. 66/1996. Reprint No. 4 as at 11 October 2006 and amending Act Nos 78/2005, 97/2005, 23/2006, 48/2006, 28/2007, 50/2007, 12/2008, 21/2008 and 34/2008. LawToday: www. legislation. vic.gov.au s. 70 -- 58 of 68 -- Part 8—Consequential Amendments Stalking Intervention Orders Act 2008 No. 68 of 2008 55 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).". (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 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 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, 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, 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 a declaration that the person— s. 74 -- 59 of 68 -- Part 8—Consequential Amendments Stalking Intervention Orders Act 2008 No. 68 of 2008 56 (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 (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 "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— "(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 determined.". 76 New section 214 inserted At the end of Part 12 of the Firearms Act 1996 insert— "214 Transitional Provisions—Stalking Orders 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; the 2008 Act means the Stalking Intervention Orders Act 2008. s. 76 -- 60 of 68 -- Part 8—Consequential Amendments Stalking Intervention Orders Act 2008 No. 68 of 2008 57 (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 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 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, 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 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 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 commencement of Part 8 of the 2008 Act.". s. 76 -- 61 of 68 -- Part 8—Consequential Amendments Stalking Intervention Orders Act 2008 No. 68 of 2008 58 Division 6—Amendment to the Health Records Act 2001 77 Definition In section 3(1) of the Health Records Act 2001, before paragraph (d) of the definition of law enforcement function insert— "(ca) the prevention, detection or investigation of conduct that could found an application for an intervention order under the Stalking Intervention Orders Act 2008;". Division 7—Amendments to the Magistrates' Court Act 1989 78 Definition In section 3(1) of the Magistrates' Court Act 1989 in the definition of proper venue— (a) in paragraph (d), after "2008" insert "or the Stalking Intervention Orders Act 2008"; (b) before paragraph (e) insert— "(db) in relation to a proceeding under the Stalking Intervention Orders Act 2008, means— (i) a venue of the court determined in accordance with paragraph (b), (d) or (e); or (ii) the civil registry court that is nearest to the place of permanent or temporary residence of the s. 77 See: Act No. 2/2001. Reprint No. 1 as at 19 February 2004 and amending Act Nos 108/2004, 18/2005, 97/2005, 23/2006, 28/2007 and 12/2008. LawToday: www. legislation. vic.gov.au See: Act No. 51/1989. Reprint No. 14 as at 21 August 2008 and amending Act Nos 77/2004, 51/2006, 12/2008 and 34/2008. LawToday: www. legislation. vic.gov.au -- 62 of 68 -- Part 8—Consequential Amendments Stalking Intervention Orders Act 2008 No. 68 of 2008 59 affected person (within the meaning of that Act); and". 79 Koori Court Division In section 4F(1)(b) of the Magistrates' Court Act 1989— (a) in subparagraph (ii), for "; and" substitute "; or"; (b) after subparagraph (ii) insert— "(iii) a contravention of an intervention order 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 (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 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 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 alleged stalking occurred in the municipal district;". s. 79 -- 63 of 68 -- Part 8—Consequential Amendments Stalking Intervention Orders Act 2008 No. 68 of 2008 60 (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; and". Division 8—Amendment to the Police Regulation Act 1958 81 Reportable offences In the First Schedule to the Police Regulation Act 1958, before item 3.3 insert— "3.2A An offence under section 32 of the Stalking Intervention Orders Act 2008.". Division 9—Amendments to the Sentencing Act 1991 82 Home detention Before section 18ZV(e) of the Sentencing Act 1991 insert— "(da) a contravention of a final order under the Stalking Intervention Orders Act 2008, or an order of a corresponding nature made in another State or a Territory; or". s. 81 See: Act No. 6338. Reprint No. 12 as at 14 July 2008 and amending Act Nos 30/2007, 4/2008 and 34/2008. LawToday: www. legislation. vic.gov.au See: Act No. 49/1991. Reprint No. 10 as at 23 April 2007 and amending Act Nos 97/2005, 23/2006, 24/2006, 56/2007, 7/2008, 8/2008, 12/2008, 18/2008 and 21/2008. LawToday: www. legislation. vic.gov.au -- 64 of 68 -- Part 8—Consequential Amendments Stalking Intervention Orders Act 2008 No. 68 of 2008 61 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 offender will commit an offence in respect of which a final order could be made under the Stalking Intervention Orders Act 2008;". ═══════════════ s. 83 -- 65 of 68 -- Stalking Intervention Orders Act 2008 No. 68 of 2008 62 ENDNOTES † Minister's second reading speech— Legislative Assembly: 12 September 2008 Legislative Council: 30 October 2008 The long title for the Bill for this Act was "A Bill for an Act to provide for a system of intervention orders in cases of stalking and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 12 September 2008 Legislative Council: 30 October 2008 Absolute majorities: Legislative Assembly: 30 October 2008 Legislative Council: 12 November 2008 Endnotes -- 66 of 68 -- Stalking Intervention Orders Act 2008 No. 68 of 2008 63 INDEX Subject Section Actamendments of other Acts 63–83 application 5 commencement 2 purpose 1 regulations 55 transitional provisions 56–62 Appeals 30, 31 Arrest applications for warrants on oath 16 following non-appearance of respondent 18 for contravention of orders 33 warrants issued following applications 15 Bail 30, 48 Children, Youth and Families Act 2005 30, 31, 51, 54 Children's Court 6, 54 Costs 50 County Court 30, 31 Definitions 3, 4, 6, 30, 31, 48, 56 Entry powers 34, 36–39 Evidence 20, 21 Firearms, firearms authorities, ammunition firearms authorities 3, 9, 35 possession (def.) 3 seizure, forfeiture, disposal, return of 40–42 surrender of 35 Interstate orders corresponding interstate orders (def.) 3 registration 43, 44 transitional provisions 62 variation, revocation, extension 45 Intervention orders affected persons (def.) 3 appeals 30, 31 applications 11, 12, 14 child (def.) 3 concurrent criminal proceedings 24 consent orders 22 contravention of 32, 33 duration 10, 13 evidence, presence of children 21 explanation of orders 23 final orders 3, 7 interim orders 3, 13, 14, 59 prevail over orders under Children, Youth and Families Act 2005 51 -- 67 of 68 -- Stalking Intervention Orders Act 2008 No. 68 of 2008 64 Subject Section procedure in absence of respondent 18 third party applications 19 respondent (def.) 3 restrictions, prohibitions 8 rules of evidence not to apply in certain cases 20 service of applications, orders 17, 29 stay pending appeal 30 transitional provisions 58–60 variation, revocation, extension 25–29 warrants 15, 16 Magistrates' Court 6, 53 Magistrates' Court Act 1989 30, 31, 37, 53 New Zealand orders 3, 46, 47, 62 Offences contravention of intervention orders 32 restriction on reports involving children 49 surrender of firearms, firearms authorities, ammunition 35 Police definition 3 powers regarding applications for intervention orders 11, 12, 14 arrest 15, 33 entry, search 34, 36–39 seizure, surrender of firearms, firearms authorities, ammunition 35, 40–42 Proceedings 6, 18, 19, 61 Property (def.) 3 Registrars definition 3 interstate orders 43, 45 intervention orders 28, 29 issue of summons, warrants 15 New Zealand orders 46, 47 Regulations 55 Search warrants 37–39 without warrant 34, 36 Seizure 40–42 Stalking (def.) 4 Supreme Court appeals to 30, 31 limitation of jurisdiction 52 Transitional provisions 56–62 -- 68 of 68 --