Family Violence Protection Regulations 2018

The regulations operationalise four main concepts from the Act: holding powers for temporary detention or direction, reporting time limits for confidentiality orders, certificates of non-attendance in counselling or assessment, and the surrender of firearms and weapons. The holding power concept (Division 1 of Part 3 of the Act) allows police to direct a person to remain at a police station, or to apprehend and detain the person, for up to six hours (extendable to ten hours by a court in exceptional circumstances). Form 1 is the prescribed information notice that must be given to the person, explaining why they are being directed or detained, the maximum duration, their right to communicate with a lawyer, and the prohibition on contacting an affected family member. The concept of a certificate of non-attendance arises under section 139 of the Act, which deals with court orders requiring a respondent to attend an assessment interview or counselling. If the respondent fails to attend, the counselling assessor or authorised provider must complete a prescribed certificate (Form 2 for assessment interviews, Form 3 for counselling) which is then used in enforcement proceedings. The reporting time limit under section 84(2)(a) relates to the power of the Magistrates’ Court to make an order restricting publication of information that might identify an affected family member. The court may require a designated person to provide a report, and regulation 7 requires that report to be provided within seven days. Firearm and weapon surrender under section 158 is a police power to direct a respondent to surrender any firearm, firearms authority, ammunition or weapon. Regulation 9 prescribes the particulars that must be included in an oral direction (name and rank of officer if not in uniform, plus a statement that failure to comply is an offence) and in a written notice (person’s name, address, date of birth, officer’s name/rank/station, the basis of the direction, place and time for surrender, description of items, and the maximum penalty for non-compliance). Finally, information disclosure under section 207 allows police to request information about a respondent from organisations (such as utilities or financial institutions) to help locate or assess the respondent. Regulation 10 prescribes that the application must be in writing and include the police officer’s details, the respondent’s name and gender, and a statement that the request is under section 207 of the Act. All these concepts are administrative scaffolding: they ensure that the coercive powers in the Act are exercised with a minimum level of formality and that respondents receive due information about their rights and obligations.

The regulations directly affect at least five groups. First, police officers are the primary operatives: they must use Form 1 when exercising holding powers, include the prescribed particulars when giving surrender directions (reg 9), and apply in writing with specified details when requesting information from organisations (reg 10). If they fail to include the mandated information, a direction or detention might be challenged as procedurally invalid, and an information request could be rejected or delayed. Second, respondents (persons alleged to have committed family violence) are affected because they receive Form 1 detailing their rights while detained or directed, and they may be ordered to attend assessment interviews or counselling. The certificates of non-attendance (Forms 2 and 3) create a formal record that could lead to further court action, including possible penalties for breach of an order. Third, affected family members are indirectly affected: the holding power and surrender directions are intended to protect them, but the procedural safeguards in the regulations (such as the information notice and the prohibition on the respondent contacting the affected family member while detained) also create limits on police conduct. Fourth, counselling assessors and authorised counselling providers are required to use the prescribed forms when certifying non-attendance. Failure to use the correct form could render the certificate inadmissible or weak in enforcement proceedings. Fifth, organisations that hold information about a respondent (such as telecommunications companies, banks, or utilities) are affected by regulation 10: they must respond to a written application that meets the prescribed format, and the application serves as the legal basis for their disclosure under section 207 of the Act. The regulation creates a compliance burden for these organisations to verify that the statutory requirements are met before disclosing personal information. The regulations also affect the Magistrates’ Court, which relies on the certificates and forms in managing intervention order proceedings and enforcement. The sunset provision affects all stakeholders by creating a fixed ten-year lifespan, after which the procedural rules lapse unless new regulations are made. This sunset imposes a periodic review obligation on the government, but it also creates uncertainty for practitioners who must monitor whether the regulations are remade, amended, or replaced before October 2028.

The regulations impose specific duties on police and confer corresponding rights on respondents. Under regulation 6, a police officer exercising holding powers under section 17 of the Act must give the detained or directed person a notice containing the information in Form 1. This includes explaining why the person is being held, the maximum duration, the right to communicate with a lawyer, the prohibition on contacting an affected family member, and the fact that it is an offence to escape. The respondent has the right to receive this information; failing to provide it could render the detention unlawful and expose the officer to civil liability or exclusion of evidence. Regulation 7 imposes a duty on the person required to prepare a report under section 84(2)(a) of the Act to provide that report within seven days. This is a tight deadline that may be difficult if the report requires gathering information from multiple sources, but it reflects the urgency inherent in family violence matters. Regulation 8 requires a counselling assessor or authorised provider who has suffered a respondent’s non-attendance to use the prescribed form (Form 2 or Form 3) when certifying that non-attendance under section 139(2). This duty includes providing the case number, details of the court order, dates and times, and a signed statement of non-attendance. If the assessor uses a non-prescribed form, the certificate may be challenged. Under regulation 9, police giving a direction to surrender firearms or weapons have a duty to include all prescribed particulars. For an oral direction, the officer must state their name and rank (if not in uniform) and that failure to comply is an offence. For a written notice, the officer must include the respondent’s details, the place and time for surrender, a description of the items, and the maximum penalties. The respondent has the right to receive that information and to know the exact penalties for non-compliance: 60 penalty units for failing to surrender a firearm, and 30 penalty units for a firearms authority, ammunition or weapon. Under regulation 10, police have the right to apply to an organisation for information about a respondent, but the duty is to apply in writing with the prescribed details. The organisation then has a duty under the Act (not the regulations) to disclose the information if the application complies. The respondent does not have a right to be notified of such an application (the Act does not require that), which limits the respondent’s procedural rights against third-party disclosure. Overall, the regulations create a set of procedural obligations that are largely ministerial but carry consequences if breached: a defective direction, notice or certificate may jeopardise enforcement, while a properly completed document strengthens the state’s ability to act.

The regulations themselves do not create penalties; they refer to the penalty provisions in the Act. However, the regulations directly affect how those penalties are enforced. Regulation 9(j) expressly states the maximum penalty for failing to comply with a direction to surrender: 60 penalty units for a firearm and 30 penalty units for a firearms authority, ammunition or weapon. This means a respondent who receives a written notice with the prescribed particulars cannot claim ignorance of the penalty amount. The regulation thus acts as an information safeguard that also strengthens the prosecution’s case by ensuring the respondent was properly warned. The certificates of non-attendance under regulation 8 are critical enforcement tools. If a respondent fails to attend an assessment interview or counselling ordered by the court, the assessor or provider must complete the prescribed form. That certificate is then likely to be used in breach proceedings. Because the form is statutory, it carries evidentiary weight and creates a prima facie record of non-compliance. If the assessor does not use the prescribed form, the certificate may be inadmissible or subject to challenge, which could undermine enforcement. The seven-day report deadline under regulation 7 is also an enforcement mechanism: if the report is not provided within time, the court may be unable to proceed with a confidentiality order, potentially delaying protection for an affected family member. However, the regulation does not specify a penalty for late reports, so the consequence is likely procedural (the court may disregard the report or require an explanation). The information disclosure application under regulation 10 does not have a direct penalty, but section 207 of the Act makes it an offence for an organisation to fail to comply with a valid application. Thus, getting the application right (using the prescribed form) is essential to trigger the organisation’s legal obligation. If the police application does not meet the prescribed format (e.g., missing the officer’s rank or the respondent’s gender), the organisation may lawfully decline to provide the information, and no penalty can be imposed because the application was not made in the prescribed way. The regulations also indirectly affect enforcement by imposing technical requirements: a surrender direction that omits the required particulars could be invalid, making any subsequent prosecution for non-compliance more difficult. Similarly, a detention that fails to provide the Form 1 notice might be unlawful, risking exclusion of evidence or civil claims. The overall enforcement architecture relies on strict adherence to the prescribed forms and details, which raises the compliance burden on police and other officials but also protects respondents from arbitrary or procedurally deficient exercises of power.

The regulations are made under the Family Violence Protection Act 2008 and interact with several other Victorian and Commonwealth laws. The most obvious interaction is with the Firearms Act 1996 (Vic). The surrender of firearms under section 158 of the Family Violence Protection Act and regulation 9 occurs in a context where the respondent may also hold a licence or permit under the Firearms Act. Surrender under the family violence regime does not revoke the licence automatically, but it may lead to a suspension or revocation under the Firearms Act if the chief commissioner considers the person unfit to possess firearms. The regulation’s requirement to include identifiers like model and serial number aligns with the firearms registry requirements under the Firearms Act. The penalties for non-compliance (60 penalty units for firearms, 30 for other items) differ from penalties under the Firearms Act for similar conduct, which could create confusion if both regimes apply simultaneously. The regulations also interact with the Charter of Human Rights and Responsibilities Act 2006 (Vic). The holding power (Form 1) and the information disclosure procedure engage rights such as liberty, privacy and a fair hearing. While the regulations do not themselves violate the Charter, their operation must be Charter-compliant. For example, the detention of a person without charge for up to six hours (or ten with court extension) must be justified as reasonable and necessary. The Form 1 notice serves as a procedural safeguard that aligns with the Charter right to be informed of the reason for detention. The information disclosure procedure under regulation 10 interacts with privacy laws, particularly the Privacy and Data Protection Act 2014 (Vic) and possibly the Commonwealth Privacy Act 1988 if the organisation is a Commonwealth agency or a private sector entity. Section 207 of the Family Violence Protection Act overrides certain privacy obligations, but only if the application is made in the prescribed way. If the application is defective, the organisation may be unable to rely on that override and could face privacy breach liability. The Subordinate Legislation Act 1994 (Vic) governs the making and sunset of these regulations. The ten-year sunset means that after October 2028, the regulations lose effect unless re-enacted. This interacts with practice: if the regulations are not remade, the Act would still operate but the procedural requirements would revert to whatever defaults the Act provides, likely creating gaps. Practitioners must monitor the sunset. The regulations revoke earlier versions, so any reference to the 2008, 2013, 2017 or 2018 (amendment) regulations is now obsolete. Finally, the regulations may interact with criminal procedure legislation if a respondent is charged with failing to surrender a firearm: the certificate of surrender direction (the written notice) will be a key exhibit, and its form must comply with the regulations to be admissible. There is no direct interaction with the Evidence Act 2008 (Vic) in the regulations themselves, but the prescribed forms may be tendered as documentary evidence and their admissibility will depend on the Evidence Act.

The Family Violence Protection Regulations 2018 have no amendments. The Table of Amendments (endnote 2) states: “There are no amendments made to the Family Violence Protection Regulations 2018 by statutory rules, subordinate instruments and Acts.” This means that the regulations as originally made on 16 October 2018 and commencing on 1 December 2018 remain in their original form. However, the regulations themselves revoke four earlier sets of regulations: the Family Violence Protection Regulations 2008 (S.R. No. 153/2008) and three amendment regulations from 2013, 2017 and 2018 (S.R. No. 40/2013, S.R. No. 112/2017 and S.R. No. 36/2018). The revocation consolidates the procedural rules into a single instrument. The explanatory details (endnote 4) confirm that the 2008 regulations had been amended by the 2013, 2017 and 2018 amending regulations before being revoked. The practical effect is that anyone researching the law must look only at the 2018 regulations and not any earlier version. Because there have been no subsequent amendments, the regulations are relatively stable, but practitioners should check for any amendments after the version date (1 December 2018). The sunset provision under the Subordinate Legislation Act 1994 means the regulations will automatically expire on 16 October 2028 unless new regulations are made before that date. This sunset is not an amendment but a future repeal mechanism. The government may choose to remake the regulations before the sunset, possibly with changes, or allow them to lapse. The absence of amendment history also means there is no accumulated judicial interpretation of the specific forms or time limits, so the regulations are relatively untested in litigation.

The source document provides no information about litigation history. The endnotes do not mention any court cases, and the Table of Amendments contains no references to judicial decisions. This likely reflects that the regulations have not been the subject of reported litigation in Victorian courts as at the date of publication. However, the regulations could be litigated in several ways. A respondent might challenge the validity of a surrender direction if the prescribed particulars were not included (regulation 9). A challenge could also arise if a person detained under the holding power did not receive the Form 1 notice (regulation 6), arguing that the detention was unlawful and that evidence obtained during the detention should be excluded. The certificate of non-attendance (regulation 8) could be contested on grounds that the form was not properly completed or that the assessor was not the correct person. The seven-day report deadline (regulation 7) might be tested if a report is delivered late and a party argues that the court no longer has jurisdiction to make a confidentiality order. The application procedure for information disclosure (regulation 10) could be litigated if an organisation refuses to disclose on the basis that the application did not comply with the prescribed format. No such cases are reported in the source, so any litigation history would have to be researched independently. This lack of litigation history means the regulations have not been scrutinised for ambiguity or constitutional validity, and their interpretation remains largely ministerial. It also means that the compliance burden is currently high because there is no judicial guidance on what constitutes substantial compliance or how strict the courts will be about technical defects. Practitioners should assume strict compliance is required until a case provides otherwise. The absence of litigation is not unusual for procedural regulations that are only a few years old and that deal with matters that are often resolved without appeal.

Several aspects of the regulations are easy to overlook and carry significant consequences. First, the seven-day report deadline under regulation 7 appears straightforward, but it does not specify whether the clock runs from the date of the court order, the date of the request for the report, or some other trigger. The regulation merely says “for the purposes of section 84(2)(a) of the Act, the prescribed time is 7 days.” The Act itself does not define the start point, so the deadline may be unenforceable until a court determines the trigger. It is prudent to assume it runs from the date the report is ordered. Second, the prescribed particulars for oral directions under regulation 9(1) require the police officer to state their name and rank only if not in uniform. If the officer is in uniform, no name and rank need be given orally. This distinction can be missed: a respondent may not see the officer’s identification, and if the officer is in plain clothes and fails to identify themselves, the direction may be invalid. Third, the written notice under regulation 9(2) must include “a description of the firearm, firearms authority, ammunition or weapon to be surrendered (if known), including identifiers such as the model and serial number”. The phrase “if known” is a trap: if the officer does not know the details, they can leave them out. But the notice must still state that the item must be surrendered within 48 hours (or a specified time). If the officer does not specify a time, the default is 48 hours. A respondent who receives a vague notice may not know what to surrender and can argue that the direction was too ambiguous to comply with. Fourth, the certificates of non-attendance (Forms 2 and 3) require the assessor or provider to delete the variation paragraph if not applicable. Failure to delete the inapplicable paragraph could make the certificate misleading. The certificate must be signed and dated, and the date should be the date of certification, not the date of non-attendance. Fifth, the information disclosure application (regulation 10) requires the respondent’s gender. If the officer does not know the gender or the respondent is non-binary, the regulation does not provide an alternative, potentially making the application defective. The regulations do not allow the officer to state “unknown” for gender. Sixth, the sunset is ten years from making (16 October 2028), not from commencement (1 December 2018). Practitioners who rely on the commencement date may miscalculate the effective expiry. Seventh, the revocation of earlier regulations is not accompanied by a transitional provision. If a proceeding was initiated before 1 December 2018 under the old forms, it is unclear whether the new forms apply or the old forms remain valid. This could create a gap if an assessor uses an old form after the commencement date. Eighth, the Form 1 notice includes the statement that the detaining officer must sign, provide name and rank/registered number. If the officer fails to sign, the notice is incomplete. The form is not severable: a missing signature may mean the notice was not given as required, potentially rendering the detention unlawful.

Compliance with the regulations is largely a matter of strict adherence to the prescribed forms and particulars. For police officers, the key steps are: ensure every person detained or directed under Division 1 of Part 3 of the Act receives the completed Form 1 promptly, with all fields filled in (including the officer’s signature). When giving an oral direction to surrender firearms or weapons, state your name and rank if you are not in uniform, and also state that failure to comply is an offence. When giving a written notice for surrender, use the checklist in regulation 9(2) to ensure every particular is included: the respondent’s name, address (if known), date of birth (if known), the officer’s name, rank and station, a clear statement that the direction is under section 158(2)(b) of the Act, the date and time of the direction, the place for surrender, a description of the items (with identifiers if known), and the maximum penalties. Do not rely on memory; use a template that matches the regulation. For information disclosure applications under section 207, make the application in writing and include all items listed in regulation 10, especially the respondent’s gender. If the gender is not known, consider whether other identifying information can satisfy the purpose, but the regulation does not allow omission. For counselling assessors and authorised providers, compliance means using the correct form (Form 2 for assessment interview non-attendance, Form 3 for counselling non-attendance). Complete all fields: case number, names of applicant and respondent, the court order details, the dates and times, and any variation. Delete the bracketed variation paragraph if it does not apply. Sign and date the certificate. Do not use an old form from the revoked regulations. For organisations receiving an information disclosure application, check that the application is in writing and contains all prescribed details. If any detail is missing, the application is not made “in the prescribed way” and you may be justified in refusing disclosure. Keep a record of the application and your response. For respondents (and their lawyers), compliance means knowing your rights under Form 1, including the right to communicate with a lawyer and the prohibition on contacting affected family members. If you receive a surrender direction, check that it meets the required particulars; if it does not, seek legal advice about challenging its validity. Always attend assessment interviews and counselling as ordered; if you cannot attend, seek a variation of the order rather than waiting for a certificate of non-attendance. For the court and registry staff, ensure that certificates of non-attendance are accepted only if they are in the prescribed form. Maintain copies of the current forms for reference. Given the lack of amendments, the forms are stable, but always check the official Victorian legislation website for any future amendments or replacement regulations. Finally, all stakeholders should diarise the sunset date of 16 October 2028 and monitor whether new regulations are introduced. Until then, strict compliance with the 2018 regulations is required.