Div 7Restraining orders

Division 7—Restraining orders 99AA—Paedophile restraining orders (a1) An application for a restraining order under this section may be made to the Magistrates Court by a police officer. (1) On the hearing of an application under this section, the Magistrates Court may make a restraining order against the defendant if— (a) the defendant— (i) is required to comply with the reporting obligations imposed by Part 3 of the Child Sex Offenders Registration Act 2006; or (ii) has been found— (A) loitering near children; or (B) using the internet to communicate with children or persons whom the defendant believed to be children (other than children or persons with whom the defendant has some good reason to communicate), on at least 2 occasions and there is reason to think that the defendant may, unless restrained, again so loiter or so use the internet; and (c) the Magistrates Court is satisfied that the making of the order is appropriate in the circumstances. (2) A restraining order under this section may restrain the defendant from 1 or more of the following: (a) loitering— (i) near children at or in the vicinity of a specified place or class of places or in specified circumstances; or (ii) near children in any circumstances; (b) using the internet or using the internet in a manner specified in the order; (c) owning, possessing or using a computer or other device that is capable of being used to gain access to the internet. (3) In considering whether or not to make a restraining order under this section and in considering the terms of the restraining order, the Magistrates Court must have regard to the following: (a) whether the defendant's behaviour has aroused, or may arouse, reasonable apprehension or fear in a child or other person; (b) whether there is reason to think that the defendant may, unless restrained, commit a sexual offence against a child or otherwise act inappropriately in relation to a child; (c) the prior criminal record (if any) of the defendant; (d) any evidence of sexual dysfunction suffered by the defendant; (e) any apparent pattern in the defendant's behaviour, any apparent connection between the defendant's behaviour and the presence of children and any apparent justification for the defendant's behaviour; (ea) any apparent pattern in the defendant's use of the internet (if any) to contact children; (f) any other matter that, in the circumstances of the case, the Magistrates Court considers relevant. (4) For the purposes of this section, a defendant loiters near children if the defendant loiters, without reasonable excuse, at or in the vicinity of a school, public toilet or place at which children are regularly present, whether or not children are actually present at the school, public toilet or place. 99AAB—Power to conduct routine inspection of computer etc (1) If a restraining order under section 99AA includes provisions relating to use of the internet by the defendant, a police officer may, at any time, enter premises occupied by the defendant and— (a) inspect any computer or device capable of storing electronic data at those premises; or (b) remove from the premises any computer or device capable of storing electronic data for the purpose of inspecting the computer or device, to determine whether there is any evidence to suggest that the defendant may have contravened the restraining order. (2) If the defendant is aware that, in order to gain access to data stored on a computer or other device being inspected or removed by a police officer under this section it is necessary to enter any password, code or other information or to perform any function in relation to the data, the defendant must provide the police officer with that password, code or information or assist the police officer in performing that function. Maximum penalty: Imprisonment for 2 years. (3) If a person is convicted of an offence against subsection (2) in relation to a computer or device that is owned by the convicted person, the computer or device is forfeited to the Crown and may be dealt with and disposed of in such manner as the Minister may direct. (4) A power must not be exercised under this section in relation to particular premises more than once in any 12 month period. (5) If a computer or device removed from premises in accordance with subsection (1)(b) is not to be seized and retained as evidence of an offence, the computer or device must be returned to the defendant— (a) as soon as practicable following inspection of the computer or device; or (b) within 1 month after the removal, whichever occurs first. (6) A police officer may use such force to enter premises, or to take other action under this section, as is reasonably necessary for the purpose. (7) This section is in addition to, and does not derogate from, any other police powers. 99AAC—Child protection restraining orders (1) An application for a restraining order under this section may be made to the Magistrates Court by— (a) a police officer; or (b) a child, or the guardian of a child, for the protection of whom a restraining order under this section is sought. (2) On the hearing of an application under this section, the Magistrates Court may make a restraining order against the defendant if— (a) the defendant is an adult who is, or has been, residing with a child under the age of 17 years of whom the defendant is not a guardian; and (b) the defendant and the child are, or have been, residing at premises other than premises in which a guardian of the child resides; and (c) — (i) the defendant or another person who resides at, or frequents, premises at which the defendant and the child reside or have resided— (A) has, within the preceding 10 years, been convicted of a prescribed offence; or (B) is, or has at any time been, subject to a restraining order under this section; or (ii) the Magistrates Court is satisfied that, as a consequence of the child's contact or residence with the defendant, the child is at risk of— (A) sexual abuse or physical, psychological or emotional abuse or neglect; or (B) engaging in, or being exposed to, conduct that is an offence under Part 5 of the Controlled Substances Act 1984; and (d) the Magistrates Court is satisfied that the making of the order is appropriate in the circumstances. (3) In considering whether or not to make a restraining order under this section and in considering the terms of the restraining order, the Magistrates Court's primary consideration must be the best interests of the child, and in determining the best interests of the child the Magistrates Court must have regard to the following matters: (a) the degree of control or influence exerted by the defendant over the child; (b) the prior criminal record (if any) of the defendant; (c) any apparent pattern in the defendant's behaviour towards the child or other children and any apparent justification for that behaviour; (d) the views of the child and any guardian of the child (to the extent that they are made known to the Magistrates Court); (e) any other matter that the Magistrates Court considers relevant. (a) require that a copy of the application under this section be served on the child, or a guardian of the child, personally; and (b) issue any orders it thinks fit to ensure that the child, or a guardian of the child, is given an opportunity to be heard in relation to the application. (5) A restraining order under this section— (a) may impose such restraints on the defendant as are necessary or desirable to protect the child from any apprehended risk; and (b) may include any consequential or ancillary orders that the Magistrates Court thinks fit; and (c) will expire when the child reaches the age of 17 years or, if an earlier time is specified in the order, at that earlier time. (6) If the Magistrates Court has made a restraining order under this section, the Magistrates Court may also, subject to any current proceedings before, or orders of, the Family Court of Australia or the Youth Court, make orders providing for the temporary placement of the child (pending, if necessary, proceedings before either of those courts)— (a) subject to paragraphs (b) and (c), into the custody of a guardian of the child; or (b) if the Magistrates Court is not satisfied that placement of the child with a guardian is in the best interests of the child, or if such a placement is not possible or appropriate—into the custody of such other person as the Magistrates Court directs; or (c) if the Magistrates Court is not satisfied that placement of the child with a guardian or some other person is in the best interests of the child, or if such a placement is not possible or appropriate—into the custody of the Minister (for a period not exceeding 28 days) and the care of such person as the Chief Executive, or the Chief Executive's nominee, directs. (7) If the applicant is not a police officer, and the application is not made by telephone by a person introduced by a police officer, the following provisions apply despite any other provisions of this Act: (a) the Magistrates Court must not issue a summons for the appearance of the defendant and must dismiss the application unless it is supported by oral evidence; (b) in addition to the discretion whether to make an order under section 99C(2), the Magistrates Court has, subject to this subsection, a discretion to refuse to issue a summons for the appearance of the defendant and to dismiss the application; (c) without limiting the circumstances in which the Magistrates Court may exercise the discretion, the Magistrates Court may exercise the discretion under paragraph (b) to dismiss the application if satisfied that the application is frivolous, vexatious, without substance or has no reasonable prospect of success; (d) there is a presumption against exercising the discretion under paragraph (b) to dismiss the application if the application discloses allegations of— (i) sexual abuse; or (ii) conduct that is an offence under Part 5 of the Controlled Substances Act 1984; (e) if the Magistrates Court exercises the discretion under paragraph (b) to dismiss the application, it must record the reasons for doing so in writing. (8) In this section— Chief Executive has the same meaning as in the Children and Young People (Safety) Act 2017; child sexual offence means any of the following offences committed against or in relation to a child under 16 years of age (including a substantially similar offence against a corresponding previous enactment or the law of another place): (a) rape; (b) indecent assault; (c) incest; (d) an offence involving unlawful sexual intercourse; (daa) an offence of persistent sexual abuse of a child under section 50 of the Criminal Law Consolidation Act 1935; (da) an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; (e) an offence involving an act of gross indecency; (f) an offence involving child prostitution; (g) an offence involving indecency or sexual misbehaviour including an offence against Part 3 Division 11A of the Criminal Law Consolidation Act 1935 or against section 23 or 33 of the Summary Offences Act 1953; (h) an attempt to commit, or assault with intent to commit, any of the offences referred to in the above paragraphs; (i) any other offence (such as homicide or abduction), if there are reasonable grounds to believe that any of the offences referred to in the above paragraphs was also committed by the same person against or in relation to the child in the course of, or as part of events surrounding, the commission of the offence; conviction—a person is taken to have been convicted of an offence if— (a) the person was convicted of the offence; or (b) the person was charged with, and found guilty of, the offence but was discharged without conviction; or (c) a court, with the consent of the person, took the offence, of which the person had not been found guilty, into account in passing sentence on the person for another offence; or (d) a court has, under Part 8A Division 2 of the Criminal Law Consolidation Act 1935 recorded findings that— (i) the person was mentally incompetent to commit the offence; and (ii) the objective elements of the offence were established; or (e) a court has, under Part 8A Division 3 of the Criminal Law Consolidation Act 1935, recorded findings that— (i) the person was mentally unfit to stand trial on a charge of the offence; and (ii) the objective elements of the offence were established; guardian, of a child, means a parent of the child, a person who is the legal guardian of the child or has the legal custody of the child or any other person who stands in loco parentis to the child and has done so for a significant length of time; Minister means the Minister to whom the administration of the Children and Young People (Safety) Act 2017 is committed; prescribed offence means— (a) a child sexual offence; or (b) an offence under Part 5 of the Controlled Substances Act 1984; sexual abuse—a child is sexually abused if— (a) a child sexual offence is committed against or in relation to the child; or (b) the child is exposed to the commission of a child sexual offence against or in relation to another child. 99C—Issue of restraining order in absence of defendant (1) A restraining order may be made in the absence of the defendant if the defendant was required by summons or conditions of bail to appear at the hearing of the application and failed to appear in obedience to the summons. (2) A restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the application, but in that case, the Magistrates Court must summon the defendant to appear before the Magistrates Court to show cause why the order should not be confirmed. (3) The Magistrates Court may make an order under subsection (2) on the basis of evidence received in the form of an affidavit but, in that case— (a) the deponent must, if the defendant so requires, appear personally at the proceedings for confirmation of the order to give oral evidence of the matters referred to in the affidavit; and (b) if the deponent does not appear personally to give evidence in pursuance of such a requirement, the Magistrates Court may not rely on the evidence contained in the affidavit for the purpose of confirming the order. (4) The Magistrates Court may, from time to time without requiring the attendance of any party, adjourn the hearing to which a defendant is summoned under subsection (2) to a later date if satisfied that the summons has not been served or that there is other adequate reason for the adjournment. (5) The date fixed in the first instance for the hearing to which a defendant is summoned under subsection (2) must be within 7 days of the date of the order, and the date fixed under subsection (4) for an adjourned hearing must be within 7 days of the date on which the adjournment is ordered, unless the Magistrates Court is satisfied— (a) that a later date is required to enable the summons to be served; or (b) that there is other adequate reason for fixing a later date. (6) A restraining order made under subsection (2)— (a) continues in force until the conclusion of the hearing to which the defendant is summoned or, if the hearing is adjourned, until the conclusion of the adjourned hearing; but (b) will not be effective after the conclusion of the hearing to which the defendant is summoned, or the adjourned hearing, unless the Magistrates Court confirms the order— (i) on failure of the defendant to appear at the hearing in obedience to the summons; or (ii) having considered any evidence given by or on behalf of the defendant; or (iii) with the consent of the defendant. (7) The Magistrates Court may confirm a restraining order in an amended form. (8) If a hearing is adjourned under this section, the Magistrates Court need not be constituted at the adjourned hearing of the same judicial officer as ordered the adjournment. 99E—Service (1) Subject to the making of an order under subsection (5), a restraining order must be served on the defendant in accordance with this section and is not binding on the defendant until it has been so served. (2) If a restraining order is confirmed in an amended form or is varied before being confirmed, or at any other time, subject to the making of an order under subsection (5) or a declaration under subsection (6)— (a) the order in its amended or varied form must be served on the defendant in accordance with this section; and (b) until so served— (i) the amendment or variation is not binding on the defendant; but (ii) the order as in force prior to the amendment or variation continues to be binding on the defendant. (3) For the purposes of this section, a restraining order, or a restraining order in its amended or varied form, is served on the defendant if— (a) the order is served personally on the defendant; or (b) the order is served on the defendant in some other manner authorised by the Magistrates Court; or (c) the defendant is present in the Court when the order is made, amended or varied (as the case requires). (4) If a police officer has reason to believe that a person is subject to a restraining order that has not been served on the person, the officer may— (a) require the person to remain at a particular place for— (i) so long as may be necessary for the order, and, if the order is subject to confirmation, the summons to appear before the Court to show cause why the order should not be confirmed, to be served on the person; or (ii) 2 hours, whichever is the lesser; and (b) if the person refuses or fails to comply with the requirement or the officer has reasonable grounds to believe that the requirement will not be complied with, arrest and detain the person in custody (without warrant) for the period referred to in paragraph (a). (5) If a police officer satisfies the Court that all reasonable efforts have been made to effect personal service of an order on a defendant but that those efforts have failed, the Court may make an order authorising service in such other manner as the Court thinks fit and specifies in the order (and, in such a case, the restraining order will not be binding on the defendant until it has been served in accordance with that order). (6) If the Court is satisfied that the order in its amended or varied form is more favourable to the defendant, the Court may declare that subsection (2)(b) does not apply and that the amendment or variation is to be binding on the defendant as from the day of the declaration or such other day as the Court specifies. 99F—Variation or revocation of restraining order (1) The Magistrates Court may vary or revoke a restraining order on application— (a) in the case of a restraining order made under section 99AAC—by a parent or guardian of the child for the protection of whom the order was made; and (b) in any case— (i) by a police officer; or (ii) by the person for whose benefit the order was made; or (iii) by the defendant. (1a) An application for variation or revocation of a restraining order may only be made by the defendant with the permission of the Magistrates Court and permission is only to be granted if the Magistrates Court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied. (3) The Magistrates Court must, before varying or revoking a restraining order under this section— (b) have regard to the same factors that the Magistrates Court is required to have regard to in considering whether or not to make a restraining order and in considering the terms of a restraining order. 99G—Notification of making etc of restraining orders (1) Where a restraining order is made, the Principal Registrar must forward a copy of the order to the Commissioner of Police and, if the applicant for the order is not a police officer, the applicant. (2) Where a restraining order is varied or revoked, the Principal Registrar must notify the Commissioner of Police, and, where the applicant for the order is not a police officer, the applicant, of the variation or revocation. 99H—Registration of foreign restraining orders (1) The Principal Registrar may, subject to the rules, register a foreign restraining order in the Magistrates Court. (2) Subject to subsection (3), a registered foreign restraining order has the same effect, and may be enforced in the same way, as a restraining order made under this Division. (3) The Magistrates Court may— (a) give such directions; and (b) make such adaptations or modifications to the order (as it applies in this State), as the Magistrates Court considers necessary or desirable for the effective operation of the order in this State. (a) vary a registered foreign restraining order as it applies in this State; or (b) cancel the registration of a foreign restraining order, at any time on application— (c) by a police officer; or (d) by the person for whose benefit the order was made; or (e) by the person against whom the order was made. (5) If a foreign restraining order is registered under this section, the Principal Registrar must forward a copy of the order to the Commissioner of Police. (6) If the Magistrates Court varies a registered foreign restraining order as it applies in this State, or cancels the registration of the order, the Principal Registrar must notify the Commissioner of Police of the variation or cancellation. 99I—Offence to contravene or fail to comply with restraining order (1) A person who contravenes or fails to comply with a restraining order or a registered foreign restraining order is guilty of an offence. Maximum penalty: Imprisonment for 2 years. (2) If a police officer has reason to suspect that a person has committed an offence against subsection (1), the officer may, without warrant, arrest and detain that person. (3) A person arrested and detained under subsection (2) must be brought before the Magistrates Court as soon as practicable, and, in any event, not more than 24 hours after arrest, to be dealt with for the offence. (4) In calculating the time that has elapsed since arrest for the purposes of subsection (3), no period falling on a Saturday, Sunday or public holiday will be counted. (5) If— (a) a person is convicted of an offence of contravening or failing to comply with a restraining order under section 99AA; and (b) the offence involved the use of a computer or other device capable of being used to gain access to the internet that is owned by the convicted person, the computer or device is forfeited to the Crown and may be dealt with and disposed of in such manner as the Minister may direct. (6) If a restraining order is made under section 99AAC for the protection of a child, the child cannot be convicted of an offence of aiding, abetting, counselling or procuring the commission of an offence against subsection (1) relating to a contravention of, or failure to comply with, the restraining order. 99J—Applications by or on behalf of child An application that could otherwise be made by a person under this Division may, if the person is a child, be made— (a) by the child with the permission of the Magistrates Court, if the child has attained the age of 14 years; or (b) on behalf of the child— (i) by a parent or guardian of the child; or (ii) by a person with whom the child normally or regularly resides. 99K—Burden of proof In proceedings under this Division other than for an offence, the Magistrates Court is to decide questions of fact on the balance of probabilities. 99KA—Special restrictions relating to child protection restraining order proceedings (1) A person must not publish, by radio, television, newspaper or in any other way, a report of child protection restraining order proceedings if— (a) the Magistrates Court prohibits publication of any report of the proceedings; or (b) the report— (i) identifies the child or contains information tending to identify the child for the protection of whom a restraining order is sought or has been made; or (ii) reveals the name, address or school, or includes any particulars, picture or film that may lead to the identification, of any child who is concerned in those proceedings. (2) The Magistrates Court may, on such conditions as it thinks fit, permit the publication of particulars, pictures or films that would otherwise be suppressed from publication under subsection (1)(b). (3) A person who contravenes subsection (1), or a condition imposed under subsection (2), is guilty of an offence. Maximum penalty: $10 000. (4) No person may be present in the Magistrates Court during child protection restraining order proceedings except the following: (a) officers of the Magistrates Court; (b) officers of an administrative unit of the Public Service assisting a Minister with the administration of the Children and Young People (Safety) Act 2017; (c) parties to the proceedings and their legal representatives; (d) witnesses while giving evidence or permitted by the Magistrates Court to remain in the Magistrates Court; (e) any guardian of the child for the protection of whom the restraining order is sought; (f) any other persons authorised by the Magistrates Court to be present. (5) The Magistrates Court may, however, exclude any of those persons from the Magistrates Court if the Magistrates Court considers it necessary to do so in the interests of the proper administration of justice. (6) In this section— child protection restraining order proceedings means— (a) proceedings under section 99AAC; or (b) proceedings under section 99F relating to an application to vary or revoke a restraining order made under section 99AAC.