Family Violence Regulation 2017

Corresponding law (s 4): The regulation prescribes each State (including the Northern Territory) as a corresponding law jurisdiction. This is a threshold concept: only orders made under a law of a prescribed jurisdiction can be considered interstate FVOs or registered foreign orders. The ACT is not prescribed because its own orders are not “interstate”. The practical effect is that any state’s domestic violence legislation is recognised as sufficiently equivalent to the ACT Family Violence Act 2016 for recognition purposes, regardless of actual differences in definitions, procedures, or protections. This is a binary classification: either a jurisdiction is prescribed or not. The regulation provides no mechanism for challenging a state’s status. If a state amended its legislation to introduce a new order type after the regulation was made, that new order type would not automatically be covered unless the regulation is amended.

Interstate FVO (s 5): This is the core concept. The regulation defines which specific orders from each state qualify. The definition is exhaustive and prescriptive. For example, from Queensland it lists “a domestic violence order, police protection notice or release conditions under the Domestic and Family Violence Protection Act 2012”. A Queensland protection order with a different name or under a different act would not be an interstate FVO, even if it serves the same protective function. This creates a bright line but also a risk of exclusion for orders that do not match the exact legislative citation. The regulation also includes transitional provisions: for Western Australia, a violence restraining order made before 1 July 2017 that addresses a “family violence concern” is included, but only if it addresses that concern. The parent Act (s 116) defines “family violence concern”. This creates an interpretive question: who determines whether a WA order made before July 2017 addresses a family violence concern? The order itself may not state the basis. Police or courts in the ACT may need to make that assessment, adding to the compliance burden.

Registered foreign orders (s 6): This concept covers orders that originate from outside Australia but have been registered under certain interstate regimes. For example, if a New Zealand protection order is registered in Victoria under Part 10 of the Family Violence Protection Act 2008 (Vic), it becomes a registered foreign order in the ACT. The regulation does not prescribe direct foreign orders; it only prescribes orders that have already been processed through a state registration scheme. This means a person arriving directly from New Zealand with a New Zealand order cannot rely on this regulation; they must first have that order registered in a state that has a prescribed registration scheme. The additional step increases costs for the protected person and creates a dependency on the willingness of state registries to process such registrations. The regulation also explicitly excludes certain orders from South Australia: a foreign intervention order registered under Part 4 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) is prescribed, but only if it is not an order declared under that Act not to be a foreign intervention order for Part 3A. This carve-out reflects the possibility that some foreign orders may be deemed unsuitable by South Australian authorities, and the ACT respects that judgment.

Protected persons (applicants for protection orders in other states): They are the primary beneficiaries. If a person holds a qualifying interstate FVO or registered foreign order and moves to the ACT, they do not need to apply for a new order. This saves legal costs, court fees, and the emotional burden of relitigating family violence history. However, the benefit depends on the order being exactly one of the prescribed types. A person with a New South Wales provisional order that is not an interim apprehended domestic violence order (if such a thing exists) would not be covered. The regulation does not create a safety net for such cases. The protected person also bears the risk that ACT police or courts may lack familiarity with the order’s conditions, especially if the order includes unique terms not commonly seen in ACT practice (e.g., a Queensland release condition). The person may need to educate authorities about the order’s effect.

Respondents (persons subject to protection orders): They are affected because the order’s conditions travel with them. A respondent who moves to the ACT is bound by the same conditions, and breach can lead to criminal liability under the ACT Act. The regulation expands the scope of orders that can be enforced against them, reducing their ability to start anew in a different jurisdiction. However, it also provides certainty: the respondent knows which orders from which states are enforceable. If an order is not on the list, the respondent may argue that it cannot be enforced in the ACT (subject to other recognition mechanisms). This could create incentives for forum shopping, though unlikely in family violence contexts.

ACT police: They must enforce orders from all listed states as if they were ACT orders. This requires training on the different order types, their conditions, and the correct approach to breach. For example, a Tasmanian police family violence order (PFVO) may have different notification requirements compared to an ACT order. Police officers on the ground must quickly identify whether a presented order falls within the regulation. If it does not, they may need to advise the protected person to apply for a fresh order, which is time-consuming and may delay protection. The regulation does not provide a guidance manual or obligation on the ACT government to fund training. The compliance burden falls on the police force as an existing resource.

ACT courts: They must accept these orders as valid and give them force. When a breach matter comes before the court, the court must interpret conditions that were drafted under another state’s law. This can lead to interpretive disputes. For instance, a Victorian family violence safety notice might have a condition that is not recognised in ACT law. The court must decide whether to enforce it as written or to adapt it. The regulation does not resolve these tensions; it only defines which orders are recognised, not how they are to be enforced.

Legal practitioners and community advocates: They must advise clients on whether a particular order is recognised. They need to check the regulation against the exact legislation of the issuing state. If the order type is not listed, they must explore alternative recognition routes or apply for a fresh ACT order. This increases the complexity of advice and potential for error.

The regulation itself does not create duties or rights; it is definitional. However, by prescribing orders, it activates duties and rights from the parent Act. The key duty is on ACT police and courts to enforce interstate FVOs and registered foreign orders as if they were ACT orders. This includes the power to arrest without warrant for breach, the obligation to serve documents, and the right of the protected person to apply for variations. The regulation broadens the reach of those duties to cover the specific listed orders.

Right to recognition: A person holding a prescribed interstate FVO has the right to have that order recognised and enforced in the ACT without further application. However, this right is conditional: it only extends to orders that exactly match the description in section 5. If the order is from a state but not one of the listed types, there is no right under this regulation. The person may still have rights under other parts of the parent Act (e.g., s 112, which allows registration of interstate orders not covered by the regulation), but that requires a separate application and court discretion.

Right to be informed: There is no express duty under this regulation for ACT authorities to proactively inform protected persons that their interstate order is recognised. In practice, a person arriving in the ACT with a known interstate order may not know whether it is covered. The regulation does not impose any obligation on the ACT government to publish guidance or maintain a public register. This information asymmetry shifts the cost onto the individual to seek legal advice.

Right to vary: The parent Act likely allows variation of an interstate FVO by the ACT Magistrates Court. The regulation facilitates this by establishing that the order is a recognised interstate FVO. But the procedures for variation may differ from those in the issuing state. For example, the grounds for varying an order under the ACT Act may not align with the grounds under the law of the issuing state. The regulation does not harmonise these; it merely imports the order itself, not the surrounding procedural law.

Duty of the respondent to comply: The respondent’s duty to comply with conditions is directly enforceable under the ACT Act. The regulation ensures that such duty extends to conditions that were originally imposed under a different state’s law. This can cause confusion if the condition is drafted using terminology specific to that state (e.g., “not to approach within 100 metres of the protected person’s residence” - which is common, but if the state uses a phrase like “domestic premises” that has a specific statutory definition, the ACT court would need to interpret it). The regulation does not provide a mechanism for translation of terms.

The regulation contains no penalty provisions. Penalties arise from the parent Act, specifically the Family Violence Act 2016, which makes breach of a protected person’s order a criminal offence. At the republication date, the value of a penalty unit for an offence is $150 for an individual and $750 for a corporation. Breach offences under the ACT Act carry up to 200 penalty units or imprisonment, depending on the nature of the breach. Because this regulation defines which orders are recognised, it effectively extends those penalty provisions to orders made in other states. A breach of a prescribed interstate FVO in the ACT is therefore an offence under ACT law, with the same penalties as a breach of an ACT order.

Enforcement mechanisms: Police can arrest without warrant if they reasonably suspect a breach of an interstate FVO. They can also issue infringement notices (police orders) if the breach is minor, but that depends on the parent Act. The regulation does not create any new enforcement powers; it simply ensures that the existing powers apply to the prescribed orders.

Risk of inconsistent enforcement: Because the regulation does not prescribe the conditions that must be included in an interstate order, enforcement may be patchy. For example, a Tasmanian PFVO might include a condition not to communicate by electronic means. If that condition is enforceable under Tasmanian law but is not a standard condition under ACT law, police may be uncertain whether to enforce it strictly. In practice, this could lead to under-enforcement, reducing the deterrent effect of the order. Conversely, over-enforcement could occur if police treat a condition as binding when, under ACT law, it would be beyond the power of an ACT court to impose. The regulation does not resolve this tension.

Consequential orders: On breach, a court may impose additional conditions, extend the order, or impose sanctions. The regulation does not affect the court’s powers to do so. However, the court is working with an order whose original context is not part of ACT law. This can create complexity in sentencing decisions.

Family Violence Act 2016 (ACT): The regulation is made under this Act and gives effect to its definitions. Section 115 of the Act defines “corresponding law”, “interstate FVO”, and “registered foreign order” by reference to prescription by regulation. Without this regulation, those definitions would be empty. The regulation is thus integral to the operation of Part 11 (Recognition of Interstate and Foreign Orders) of the Act. It must be read in conjunction with the Act. Any amendment to the Act’s recognition scheme may require a corresponding amendment to the regulation.

State family violence laws: The regulation cross-references specific sections of the laws of each state. For example, it cites the NSW Crimes (Domestic and Personal Violence) Act 2007, the NT Domestic and Family Violence Act 2007, and so on. This means that amendments to those state laws may render the regulation outdated. If a state introduces a new order type that addresses family violence but is not listed, the regulation does not cover it. If a state renames or renumbers its acts, the regulation’s citations may become inaccurate, creating legal uncertainty. The regulation has not been amended since 2017, so it may already be out of step with later state amendments.

Legislation Act 2001 (ACT): The regulation is a statutory instrument subject to the Legislation Act. Notes in the regulation (s 3) state that notes are explanatory and not part of the regulation, reflecting s 127(1),(4),(5) of the Legislation Act. The interpretation of terms like “State” includes the Northern Territory under the Legislation Act dictionary, which is applied by the note to s 4.

Mutual recognition legislation (Commonwealth): The regulation operates within the broader context of the National Domestic Violence Order Scheme, which aims to ensure automatic recognition of protection orders across all Australian jurisdictions. This regulation is the ACT’s implementing instrument. It interacts with the national scheme, but the regulation itself does not reference Commonwealth laws. However, its effect supports the policy goal of consistent cross-border enforcement. If the Commonwealth were to legislate directly, this regulation might be redundant.

Criminal procedure: Interstate FVOs may have evidentiary implications in criminal proceedings. For example, if a respondent is charged with assault, the existence of an interstate FVO may be relevant to bail conditions, sentencing, or the admissibility of evidence. The regulation does not address these interactions, leaving them to general criminal law and evidence legislation.

Family law (Commonwealth): The Family Law Act 1975 (Cth) can make parenting orders that are inconsistent with state protection orders. The regulation does not affect that interaction. If an interstate FVO conflicts with a federal parenting order, the general law determines which prevails (usually the protection order is preserved, but this is not addressed in the regulation).

The Family Violence Regulation 2017 has never been amended. The republication (No 1) shows that the regulation was made on 24 November 2017, notified on the legislation register the same day, and commenced in full on 25 November 2017. Section 2 (commencement) was later omitted as a formal consequence under the Legislation Act 2001, s 89(4) once the regulation was fully in force. That is a standard editorial step with no substantive effect. There are no other amendment entries in endnote 4.

This static history is significant. Since 2017, several states have amended their domestic violence laws. For example, the Victorian Family Violence Protection Act 2008 has been amended multiple times; yet the regulation still only references the original 2008 Act, not later versions. Similarly, Western Australia’s Restraining Orders Act 1997 may have been amended since 2017. The regulation does not incorporate those amendments. This means that if a state created a new order type after 2017 (e.g., an “interim family violence protection notice” under a post-2017 amendment), it would not be an interstate FVO under this regulation, even if it is functionally identical to a listed order. The absence of amendment history imposes risk on both protected persons and authorities. Protected persons may assume any order from another state is recognised when it might not be. Authorities must check the original legislation year and part numbers against the regulation, which may become increasingly difficult over time.

The lack of amendment also means that the regulation has not been updated to reflect changes in terminology. For instance, if a state renamed its act, the citation in the regulation would be incorrect, potentially rendering the order unrecognised even if the new act is a direct successor. The onus is on the ACT government to monitor state legislative changes and amend the regulation. Until that happens, the regulation’s scope is frozen as at November 2017.

There is no litigation history recorded in the regulation or its endnotes. This is not surprising for a definitional subordinate instrument. However, its application has likely been considered in cases under the parent Act. Without access to ACT case law databases, one cannot say definitively whether there have been disputes about whether a particular order type falls within the regulation. Based on the regulation’s content, potential areas of litigation include:

• Category disputes: Whether an order from a state that has a similar but not identical name to the listed order qualifies. For example, a “provisional apprehended domestic violence order” under NSW law may exist but is not listed. A court might need to decide if it falls within the spirit of the regulation, but the regulation is exhaustive. The plain text would exclude it.

• Interpretation of “family violence concern” (s 5(g)(ii) for WA): The regulation includes violence restraining orders made before 1 July 2017 that address a family violence concern. If a respondent argues the order does not address a family violence concern (e.g., it was issued based on other abusive behaviour not defined as family violence under ACT law), the court would need to interpret s 116 of the Act. This could lead to litigation over the meaning of the term in the context of the issuing state’s law.

• Registered foreign orders: There could be litigation over whether an order registered under a state’s legislation qualifies if the registration process was flawed. The regulation says the order must be “registered under” the specified part. If the registration was ineffective under that state’s law, the order may not be a valid registered foreign order in the ACT.

• Constitutional validity: While unlikely, there could be a challenge that the ACT’s recognition of another state’s order infringes on the respondent’s right to natural justice (if the issuing state’s procedures were less protective). The regulation does not create a mechanism for contesting the original order in the ACT. The High Court has upheld similar recognition schemes, but the absence of a domestic challenge history does not rule out future arguments.

• Enforcement errors: Cases where police arrest a person for breach of an order that is not actually prescribed under the regulation. The respondent could argue false imprisonment or wrongful arrest. The regulation’s clarity (or lack thereof) would be central.

Given the regulation’s limited scope and the lack of notable litigation in the official record, practitioners should be cautious and expect that any litigation will focus on the parent Act’s provisions, not the regulation itself.

Exhaustive list catches the unwary: The regulation is exhaustive. If an order type from a state is not listed, it is not an interstate FVO. This is the biggest trap. For example, the regulation lists “apprehended domestic violence order or an interim apprehended domestic violence order” from NSW. It does not list “provisional orders”, “telephone interim orders”, or “court attendance notices” that may have protective conditions. A person holding a provisional ADVO from NSW may arrive in the ACT believing they are protected, but the regulation offers no recognition. They must apply for a fresh ACT order.

Western Australia date cut-off: Section 5(g)(ii) includes only WA violence restraining orders made before 1 July 2017 that address a family violence concern. Orders made on or after 1 July 2017 are not covered unless they are “family violence restraining orders” (which are listed separately in (i)). A person with a post-30 June 2017 VRO that does not meet the “family violence concern” test will not be recognised. Moreover, determining whether a pre-1 July 2017 VRO addresses a family violence concern is not self-evident; the order may not state the basis. This creates an investigation burden on police and potential litigation.

South Australian foreign intervention orders: Section 6(d) excludes foreign intervention orders that are “declared under that Act not to be a foreign intervention order for that Act, part 3A”. This is a complicated carve-out. It means that if South Australian authorities have declared that a particular foreign order is not a foreign intervention order for the purposes of SA law, then that order is not a registered foreign order in the ACT, even if it was registered under Part 4. This adds a layer of uncertainty. A practitioner would need to check South Australian declarations, which may not be easily accessible.

No direct New Zealand coverage: A New Zealand protection order that has not been registered in Victoria under Part 10 of the Family Violence Protection Act 2008 is not covered by this regulation. The regulation does not provide for direct recognition of foreign orders. A person moving from New Zealand to the ACT must first have the order registered in Victoria (or another state with a prescribed registration regime) and then rely on the regulation. This adds time and cost, and the Victorian registration process may have its own requirements.

No updates since 2017: The regulation is as at 25 November 2017. Any changes to state legislation after that date are not reflected. For example, if Tasmania amended its Family Violence Act 2004 to introduce a “variation order” that contains protective conditions, that variation order would not be an interstate FVO unless it falls under one of the listed categories. Similarly, if Queensland renamed its Domestic and Family Violence Protection Act 2012, the regulation’s citation would be technically incorrect, though likely still effective under interpretation principles. The risk is high for minor changes that a practitioner may not know exist.

No mechanism for challenging recognition: The regulation provides no avenue for a respondent to argue that a particular order should not be recognised because it was issued under a state law that is fundamentally different from the ACT’s. The recognition is automatic for listed orders. A respondent cannot challenge the validity of the order in the ACT court; they must go back to the issuing state. This reduces procedural fairness for respondents who may have a good argument that the order was improperly issued or that the conditions are too restrictive given ACT standards. The regulation imposes a one-size-fits-all solution.

Interpretation of conditions: The regulation does not address how to interpret conditions of interstate orders. If a Victorian order says “not to commit family violence” (a standard condition), that is easy. But if it says “not to use abusive language” which under Victorian law has a specific definition, the ACT court may struggle to apply it. The regulation treats the condition as if it were made under ACT law, but the underlying law is different. This creates a risk that conditions are either over-enforced or under-enforced because of interpretive gaps.

For protected persons holding an interstate order: Upon moving to the ACT, obtain a certified copy of the order and, if applicable, any certificate of registration from the issuing state. Keep the order readily available to show police. To confirm whether the order is recognised, compare the exact type of order with the list in section 5 of the regulation. If the order is not listed, do not assume it is unenforceable - you may be able to apply to the ACT Magistrates Court under the parent Act (s 112) to have it registered as an interstate order. Seek legal advice promptly. If the order is listed, you can rely on it immediately. However, inform local police of its existence and ask them to note it in their systems. This may prevent misunderstandings.

For respondents subject to an interstate order: Understand that the conditions of the order are enforceable in the ACT if the order is prescribed. You cannot ignore the order simply because it was made in another state. If you wish to challenge the conditions, you must apply to vary the order in the issuing state (the ACT court may have limited power to vary interstate orders). Alternatively, if you believe the order is not prescribed (e.g., it is a type not listed), you may be able to argue that it is not enforceable in the ACT, but seek legal advice before relying on that view, as the police may still arrest you. Consider the compliance burden of living under an order made under another state’s law; you may need to check the exact wording of conditions.

For ACT police: Develop internal guidance that cross-references the regulation with each state’s current legislation. Because the regulation is static, police should verify that the order type matches the citation exactly. For WA orders, check the date and ensure that pre-1 July 2017 VROs are assessed for “family violence concern”. If the order is not prescribed, treat it as a potential application for registration under the Act, but do not enforce it as an interstate FVO. Police should also ensure that when an interstate FVO is breached, the offence is charged under the ACT Act (not the issuing state’s law). Training should cover the diversity of order types and conditions.

For courts: Confirm that the order presented is prescribed by the regulation. If it is, treat it as an ACT order for enforcement, variation, or extension purposes. If interpretive issues arise regarding conditions, consider using the issuing state’s legislation to assist in construction, but note that the regulation does not require that. Courts may also need to decide issues of recognition if a party challenges whether the order falls within the regulation’s list. Maintain a current copy of the regulation (as republished in 2017, noting no amendments) and be aware that legislative changes in other states may not be reflected.

For legal practitioners: When advising a client who holds an interstate order, always start by checking the regulation’s list. Do not rely on the client’s description alone. Obtain the legislative citation from the order itself. If the order is prescribed, advise that it is automatically recognised, but also note the limitations (e.g., no variation by ACT court without issuing state’s consent). If the order is not prescribed, advise on alternatives: apply for registration under s 112 of the Act or apply for a fresh ACT order. The regulation does not create a grace period, so the client may be unprotected until a new order is obtained. Also advise that if the regulatory list is outdated, the client may need to seek a court declaration or clarification from the ACT Justice and Community Safety Directorate.

For community organisations: Educate clients about the regulation’s exhaustive nature. Provide information sheets that list the prescribed orders by state, but update them cautiously given the static regulation. Encourage clients to contact an ACT legal service upon relocation to verify recognition. Advocate for the ACT government to amend the regulation to keep pace with state changes, as the current lack of amendment creates gaps in protection.