The National Domestic Violence Scheme is now in effect
Each State and Territory has passed model amendments to existing domestic violence legislation to enable the consistent recognition of interstate orders. The terminology and laws remain unique to each jurisdiction, as do the conditions in the orders. The key elements of the Scheme are:
- A domestic violence order (whatever the nomenclature) made in any Australian State or Territory on or after 25 November 2017, is automatically recognised and enforceable in each other State and Territory. No further action is required – they are automatically nationally recognised orders. The recognition applies to any order made by a court or police officer that is declared by the regulations of the respective States and Territories to be an ‘interstate order’. They include final orders, interim orders, and various other types of protective mechanisms which are available (for example, release conditions and police protection notices).
- Domestic violence orders made prior to 25 November 2017 are different – to be recognised and enforceable in a State or Territory other than the one in which they were made, a discrete application must be made for registration in each other State or Territory in which protection is sought.
- A nationally recognised order prevails over an earlier comparable local order or comparable interstate order (and the earlier orders stops having effect). However if a new nationally recognised order does not extend to all of the named persons in an earlier comparable order, the earlier order continues to have effect to protect those people.
- Orders made in New Zealand can also become a recognised order in Australia. It is not automatic though – an application can be made for registration of a New Zealand order in an Australian State or Territory, and if registered, it is then recognised nationally. The perpetrator does not need to be given notice or an opportunity to be heard. Applications are made to the clerk of the local court. The local court must register the order if it is satisfied the New Zealand order is in force and has been served on the perpetrator. The legislation also allows the clerk to call on the New Zealand court to adapt or modify the order to enable registration in Australia, and for the clerk to make adaptions to allow registration.
- Applications to vary a nationally recognised order can be made in any State or Territory – so for example, a NSW order can be varied on application to a Queensland court, and the variation has effect across the country. The court hearing the application retains discretion as to whether to hear the application and the legislative amendments in each jurisdiction detail the matters which the court may consider.
- A New Zealand order registered in Australia can also be varied as it applies in the registered Australian jurisdiction – but that does not vary the terms of the order as it applies in New Zealand. Similarly, Australian orders can, on application, be registered and enforceable in New Zealand.
- Information will be shared across borders between police and courts through a new national database – applications, orders and court results will be added to the database which is available to all police agencies and court agencies across Australia. If an interstate agency requires documents from an interstate agency, the legislation compels the other agency to provide what is reasonably requested for the purpose of exercising law enforcement functions.
This article is from the Law Council of Australia