Monday, 21 June 2010

Legislation Watch: intervention orders, VIS and public order offences

Edit: The Personal Safety Intervention Orders Act 2010 received Royal Assent on 7/9/10.

If not proclaimed earlier, it will come into effect on 1 January 2012. Part 13 Division 1 s 186 of the Act will repeal the Stalking Intervention Orders Act 2008, but ss 187 - 191 preserves applications and orders made under the repealed legislation.

Two current pieces of legislation that will amend the operation of existing Acts are discussed below. One of them has already passed into law, and the other is likely to do so soon.

Justice Legislation Amendment Act (Victims of Crime Assistance and Other Matters) Act 2010

This is omnibus legislation intended to accomplish a variety of different aims. The Act has already received Royal Assent but most of the significant amendments haven't been proclaimed yet. These include:

• Amending the Sentencing Act 1991 and Children, Youth and Families Act 2005 to put into effect some of the recommendations from a government report, A Victim's Voice: Victim Impact Statements in Victoria.

The definition of victim in both Acts has been broadened to include those indirectly affected by crime. The type of material that can be included in a VIS has been expanded, and a qualified right has been inserted for the victim of a crime to have their statement read aloud as part of the sentencing hearing.

Judicial Registrars will be permitted to sit as delegates of the Victims Of Crime Assistance Tribunal. New provisions allow for financial compensation for reasonable safety-related expenses.

• Changes to the Family Violence Protection Act 2008. Amongst a number of changes to police procedures, s 55 will require a court to consider the practicality of obtaining oral evidence if considering excluding the Family Violence Safety Notice document itself as evidence under s 65.

Amendments also create the opportunity for children who are to be the subject of an intervention order to be assessed by clinicians, to establish the conditions that may be appropriate in particular cases.

• Many changes to the Liquor Control Reform Act 1998 including doubling the infringement amount for being drunk or quarrelsome, extending the duration of banning notices, and increasing the statutory maximum penalty for various public order offences under the Summary Offences Act 1966, including public drunkeness.

The Explanatory Memorandum can be found here.

Personal Safety Intervention Orders Bill 2010

When the Crimes (Family Violence) Act 1987 was repealed in 2008 it was replaced by two acts: the Family Violence Protection Act 2008 and the Stalking Intervention Orders Act 2008.

The Act concerning family violence had been the subject of extensive community consultation and debate. It's fair to say that the Act which related to stalking had not received the same level of scrutiny. The Stalking Intervention Orders Act 2008 was a stop-gap designed to allow the statutory separation of the two types of intervention orders.

It will be replaced by the Personal Safety Intervention Orders Act 2010. The Bill hasn't had its second reading but seems assured to pass, though possibly with amendments. It will be enacted at latest by 1 January 2012, but is likely to come into effect far sooner than that.

The Stalking Intervention Orders Act 2008 was troubled by being required to deal with two very different kind of non-family violence situations. Some complaints concerned the kind of obsessive predatory behaviour which had given rise to the creation of the criminal offence of stalking found at s 21A of the Crimes Act 1958. It was also called upon to deal with the kinds of repetitive neighbourhood disputes which, in the past, have been dealt with under the common law under binding-over orders or the tort of private nuisance.

The Explanatory Memorandum to the Bill explains [at page 5]:

Under the Stalking Intervention Orders Act 2008 the only ground for an intervention order was stalking. As such, it became a "catch all" provision for other types of behaviour that, although they came within a broad reading of the definition of stalking, were not necessarily pursuit-type stalking. It is intended that only pursuit-type stalking will be covered by the term "stalking" under this Bill.

A new category of conduct called prohibited behaviour will describe the non-stalking behaviour that may provide a basis for an order. This is described at s 5 as:

• assault;

• sexual assault;

• harassment;

• property damage or interference;

• making a serious threat.

Section 47 will provide that courts can inform themselves as they see fit when determining an application, regardless of the normal rules of evidence. This is in similar terms to a provision in the Family Violence Prevention Act 2008.

1 comment:

canarydownthemine said...

It is worrying that parliament is willing to incrementally relax the traditional safeguards of the court system (even for a good cause like this.) First they create a separate division of the magistrates court where allegations of criminal conduct are only required to be proved to a civil standard. Then they introduce new laws that allow in evidence that is not allowed under the general rules of law. Then they direct that the court has to take into account the inconvenience it may cause the police to have to collect proper evidence!

Who guards the guards? Good question.