Stalking Intervention Orders Act 2008

Stalking Intervention Orders Act 2008

No. 68 of 2008

table of provisions

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

3Definitions

4Meaning of stalking

5Act not to apply to certain conduct

6Jurisdiction of the Children's Court

Part 2—Intervention Orders

7Final orders

8Restrictions and prohibitions that may be included in an intervention order

9Cancellation or suspension of firearms authority

10Duration of order

11Applications for intervention orders

12Police applicants and police prosecutors

13Court may make interim orders

14Applications for intervention orders made by telephone or fax

Part 3—Procedures Relating to Intervention Orders

Division 1—Procedures relating to applications for intervention orders

15Warrant may issue on certain applications

16Application on oath if warrant to issue

17Service of application for intervention order

18Procedure in absence of the respondent

19Procedure in third party applications

20Rules of evidence not to apply in certain cases

21Restriction on evidence by and presence of children

22Consent orders

23Explanation of orders

24Concurrent criminal proceedings

Division 2—Variation, revocation or extension of orders

25Variation, revocation or extension of orders

26Who may apply

27Service of application for variation, revocation or extension

28Variation, revocation or extension of order registered interstate

Division 3—Service of intervention orders

29Service of intervention orders

Division 4—Appeals

30Appeal by respondent

31Appeal by applicant

Division 5—Contravention of order

32Contravention of an order

33Arrest for contravention of an order

Part 4—Search of Premises and Seizure of Firearms

34Entry and search of premises

35Surrender of firearms

36Search without warrant

37Warrants to search premises and vehicles

38Announcement before entry

39Copy of the warrant to be given to occupier

40Seizure of firearms

41Effect of seizure of firearms if final order made

42Effect of seizure of firearm if no final order made

Part 5—Registration of Interstate and New Zealand Orders

Division 1—Interstate orders

43Registration of corresponding interstate orders

44Effect of registration

45Variation, revocation or extension of corresponding interstate order

Division 2—New Zealand orders

46Registration of corresponding New Zealand orders

47Effect of registration

Part 6—Miscellaneous

48Bail on appearance to summons or on arrest

49Restriction on reports of proceedings involving children

50Costs

51Intervention order prevails over order under Children,
Youth and Families Act 2005

52Supreme Court—limitation of jurisdiction

53Rules of court and practice directions for Magistrates' Court

54Rules of court and practice directions for Children's Court

55Regulations

Part 7—Transitional Provisions

56Definitions

57References to repealed Act

58Intervention orders

59Interim orders

60Complaints and applications

61Proceedings

62Interstate and New Zealand orders

Part 8—Consequential Amendments

Division 1—Amendment to the Bail Act 1977

63Entitlement to bail

Division 2—Amendments to the Children, Youth and Families Act 2005

64Definition of child

65Jurisdiction of the Family Division

66Jurisdiction of the Neighbourhood Justice Division

Division 3—Amendments to the Corrections Act 1986

67Home detention

68Contents of home detention assessment report

Division 4—Amendments to the Crimes Act 1958

69Stalking

Division 5—Amendments to the Firearms Act 1996

70Definition

71Immediate cancellation of a licence

72Suspension of licence—certain prohibited persons

73Power of Chief Commissioner to cancel licence under this Part

74Surrender of firearms and licence document

75Application to be deemed not to be prohibited person

76New section 214 inserted

214Transitional Provisions—Stalking Orders
Intervention Act 2008

Division 6—Amendment to the Health Records Act 2001

77Definition

Division 7—Amendments to the Magistrates' Court Act 1989

78Definition

79Koori Court Division

80Neighbourhood Justice Division

Division 8—Amendment to the Police Regulation Act 1958

81Reportable offences

Division 9—Amendments to the Sentencing Act 1991

82Home detention

83Contents of home detention assessment report

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Endnotes

INDEX63

SectionPage

Victoria

SectionPage

Stalking Intervention Orders Act 2008[†]

No. 68 of 2008

[Assented to 18 November 2008]

Stalking Intervention Orders Act 2008
No. 68 of 2008

The Parliament of Victoriaenacts:

Part 8—Consequential Amendments

Stalking Intervention Orders Act 2008
No. 68 of 2008

Part 1—Preliminary

1Purpose

The main purpose of this Act is to provide for a system of intervention orders in cases of stalking.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day to be proclaimed.

(2)If this Act does not come into operation before 1October 2009, it comes into operation on that day.

3Definitions

s. 3

In this Act—

affected personmeans 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 18years;

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;

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 includesan order made under section 13 or 14 as varied or extended under section 25;

s. 3

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

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);

respondentmeans a person against whom—

(a)an application for an intervention orderhas been made; or

(b)an intervention orderhas been made;

stalking has the meaning given in section 4.

4Meaning of stalking

s. 4

(1)A person (thefirst 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—

(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;

s. 4

(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.

(2) For the purposes of this Act, thefirst 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.

5Act not to apply to certain conduct

s. 5

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;

(d) the execution of a warrant;

(e) the protection of the public revenue.

6Jurisdiction of the Children's Court

(1) If the affected person or the respondent is under the age of 18 years at the time an applicationis 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.

(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.

s. 6

(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 andMagistrates' Courtincludes the Neighbourhood Justice Division of the Children's Court or Magistrates' Court (as the case requires).

______

Part 2—Intervention Orders

7Final orders

s. 7

(1)The court may make afinalorder 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

(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.

(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.

8Restrictionsand prohibitions that may be included in an intervention order

s. 8

(1)Without limiting section 7(2), a finalorder 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.

(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.

9Cancellation or suspension of firearms authority

s. 9

(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 finalorder, 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 ordera 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 section189 of the Firearms Act 1996 for a declaration that the person is deemed not to be a prohibited person for that Act.

10Duration of order

(1)The court may specify in a final order a period for which the order is to remain in force.

(2)A finalorder 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.

11Applications forintervention orders

s. 11

(1)An application for an intervention order may be made by—

(a)a police officer; or

(b)the affected person; or

(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.

(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.

12Police applicants and police prosecutors

s. 12

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.

13Court may make interim orders

s. 13

(1)If an application for an intervention order has been made, the court may make an interimorderif 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 prohibitionsthat 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 untila further order of the court is made.

14Applicationsfor intervention orders made by telephone or fax

(1)A police officermay apply for an intervention order by telephone or facsimile machine if—

(a)thepolice 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

(B)on a Saturday, Sunday or public holiday; or

s. 14

(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.