Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 (Qld)

The Parliament of Queensland enacts—

Part 1    Preliminary

1   Short title

This Act may be cited as the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024.

2   Commencement

(1)The following provisions commence on a day to be fixed by proclamation—

(a)part 3;

(b)part 4, divisions 3 to 7;

(c)parts 5 to 8;

(d)part 9, divisions 3 and 4;

(e)parts 10, 11, 13 and 14;

(f)schedule 1.

(2)The Acts Interpretation Act 1954, section 15DA does not apply to this Act.

Part 2    Amendment of Bail Act 1980

3   Act amended

This part amends the Bail Act 1980.

4   Amendment of s 6 (Definitions)

Section 6—
insert—

family relationship has the meaning given by the Domestic and Family Violence Protection Act 2012, section 19.

informal care relationship has the meaning given by the Domestic and Family Violence Protection Act 2012, section 20.

5   Amendment of s 11 (Conditions of release on bail)

Section 11—
insert—

(3A)In considering the imposition of special conditions under subsection (2), the court or police officer must consider the likely effect a condition would have on the defendant’s ability to carry out the defendant’s responsibilities for—

(a)a person with whom the defendant is in a family relationship and for whom the defendant is the primary caregiver; or

(b)a person with whom the defendant is in an informal care relationship; or

(c)if the defendant is pregnant—the child of the pregnancy.

Examples of responsibilities—

•transporting a child to an appointment, childcare or school

•attending a medical appointment in relation to a pregnancy

•cultural obligations to a family member

6   Amendment of s 16 (Refusal of bail generally)

Section 16(2)—
insert—

(i)the likely effect that refusal of bail would have on—

(i)a person with whom the defendant is in a family relationship and for whom the defendant is the primary caregiver; or

(ii)a person with whom the defendant is in an informal care relationship; or

(iii)if the defendant is pregnant—the child of the pregnancy.

7   Insertion of new s 51

After section 50—
insert—

51   Transitional provision for Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024

(1)Sections 6, 11 and 16, as amended by the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, apply in relation to the release of a person on bail on or after the commencement.

(2)For subsection (1), it is irrelevant whether the offence in relation to which the decision is made happened, or the proceeding for the offence was started, before or after the commencement.

Part 3    Amendment of Criminal Code

Division 1 Preliminary

8   Code amended

This part amends the Criminal Code.

Division 2 Failure to report offence

9   Amendment of s 229BC (Failure to report belief of child sexual offence committed in relation to child)

(1)Section 229BC(4)(c), ‘becomes an adult’—
omit, insert—

turns 16 years

(2)Section 229BC(4)—
insert—

(e)both of the following apply—

(i)the adult gains the information—

(A)as a relevant professional while acting in the adult’s professional capacity; and

(B)in the course of a confidential professional relationship with the child in which there is an express or implied obligation of confidentiality between the adult and the child;

(ii)the adult reasonably believes there is no real risk of serious harm to the child or any other child in not disclosing the information to a police officer.

(3)Section 229BC(6)—
insert—

counsel, a person, means—

(a)to listen to and give verbal or other support, help or encouragement to the person, whether one-on-one or in a group; or

(b)to advise, give therapy to or treat the person, whether one-on-one or in a group.

counsellor means a person who—

(a)has undertaken training or study, or has experience, that is relevant to the process of counselling other persons; and

(b)in the course of the person’s paid or voluntary employment, other than as a religious representative, counsels another person.

relevant professional means—

(a)a medical practitioner; or

(b)a person registered under the Health Practitioner Regulation National Law to practise in the psychology profession, other than as a student; or

(c)a person registered under the Health Practitioner Regulation National Law to practise in the registered nurses division of the nursing profession, other than as a student; or

(d)a person registered under the Health Practitioner Regulation National Law to practise in the midwifery profession, other than as a student; or

(e)a person who is a member of the Australian Association of Social Workers Ltd ACN 008 576 010; or

(f)a counsellor; or

(g)a person who is of a class of persons prescribed by regulation.

religious representative means a person who—

(a)is a member of—

(i)an organised religion; or

(ii)a religious group, even if the group is not part of, or does not consider itself to be part of, an organised religion; and

(b)holds a position in the religion or group that allows the person to hold themself out as a representative of the religion or group.

Division 3 Affirmative consent, mistake of fact and stealthing

10   Amendment of s 223 (Distributing intimate images)

Section 223(5), definition consent—
omit, insert—

consent means free and voluntary agreement by a person with the cognitive capacity to make the agreement.

10A    Amendment of s 227A (Observations or recordings in breach of privacy)

Section 227A(3), definition consent—
omit, insert—

consent means free and voluntary agreement by a person with the cognitive capacity to make the agreement.

11   Amendment of s 227B (Distributing prohibited visual recordings)

Section 227B(2), definition consent—
omit, insert—

consent means free and voluntary agreement by a person with the cognitive capacity to make the agreement.

12   Amendment of s 229A (Threats to distribute intimate image or prohibited visual recording)

Section 229A(5), definition consent—
omit, insert—

consent means free and voluntary agreement by a person with the cognitive capacity to make the agreement.

13   Replacement of s 348 (Meaning of consent)

Section 348—
omit, insert—

348   Consent

(1)In this chapter, consent means free and voluntary agreement.

(2)A person may withdraw consent to an act at any time.

(3)A person who does not offer physical or verbal resistance to an act is not, by reason only of that fact, to be taken to consent to the act.

(4)A person does not consent to an act just because they consented to—

(a)a different act with the same person; or

(b)the same act with the same person at a different time or place; or

(c)the same act with a different person; or

(d)a different act with a different person.

348AA    Circumstances in which there is no consent

(1)Circumstances in which a person does not consent to an act include the following—

(a)the person does not say or do anything to communicate consent;

(b)the person does not have the cognitive capacity to consent to the act;

(c)the person is so affected by alcohol or another drug as to be incapable of consenting to the act;

(d)the person is so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;

Note—

This circumstance may apply where a person gave consent when not so affected by alcohol or another drug as to be incapable of consenting.

(e)the person is unconscious or asleep;

(f)the person participates in the act because of force, a fear of force, harm of any type or a fear of harm of any type, whether to that person or someone else or to an animal or property, regardless of—

(i)when the force, harm or conduct giving rise to the fear occurs; or

(ii)whether it is, or is a result of, a single incident or is part of an ongoing pattern;

Examples of harm—

•economic or financial harm

•reputational harm

•harm to the person’s family, cultural or community relationships

•harm to the person’s employment

•domestic violence involving psychological abuse or harm to mental health

•sexual harassment

(g)the person participates in the act because of coercion, blackmail or intimidation, regardless of—

(i)when the coercion, blackmail or intimidation occurs; or

(ii)whether it occurs as a single incident or as part of an ongoing pattern;

(h)the person participates in the act because the person or another person is unlawfully confined, detained or otherwise deprived of their personal liberty;

(i)the person participates in the act because the person is overborne by the abuse of a relationship of authority, trust or dependence;

(j)the person participates in the act because of a false or fraudulent representation about the nature or purpose of the act, including about whether the act is for health, hygienic or cosmetic purposes;

(k)the person participates in the act with another person because the person is mistaken—

(i)about the identity of the other person; or

(ii)that the person is married to the other person;

(l)the person is a sex worker and participates in the act because of a false or fraudulent representation that the person will be paid or receive some reward for the act;

(m)both of the following apply—

(i)the person participates in the act with another person because of a false or fraudulent representation by the other person about whether the other person has a serious disease;

(ii)the other person transmits the serious disease to the person;

(n)the person participates in the act with another person on the basis that a condom is used for the act and the other person does any of the following things before or during the act—

(i)does not use a condom;

(ii)tampers with the condom;

(iii)removes the condom;

(iv)becomes aware that the condom is no longer effective but continues with the act.

(2)If a person, against whom an offence under this chapter is alleged to have been committed, suffers grievous bodily harm as a result of, or in connection with, the offence, the grievous bodily harm suffered is evidence of the lack of consent on the part of the person unless the contrary is proved.

(3)This section does not limit the grounds on which it may be established that a person does not consent to an act.

(4)In this section—

sex worker means a person who provides services to another person that involve the person participating in a sexual activity with the other person for payment or reward.

14   Amendment of s 348A (Mistake of fact in relation to consent)

(1)Section 348A(1), ‘gave consent’—
omit, insert—

consented

(2)Section 348A(2) and (3)—
omit, insert—

(2)In deciding whether a belief of the person was honest and reasonable, regard may not be had to the voluntary intoxication of the person caused by alcohol, a drug or another substance.

(3)A belief by the person that another person consented to an act is not reasonable if the person did not, immediately before or at the time of the act, say or do anything to ascertain whether the other person consented to the act.

(4)Subsection (3) does not apply if the person proves that—

(a)the person had at the time of the act—

(i)a cognitive impairment within the meaning of section 348B; or

(ii)a mental health impairment within the meaning of section 348C; and

(b)the impairment was a substantial cause of the person not saying or doing anything.

(5)The person bears the burden of proving the matters mentioned in subsection (4).

(6)Evidence adduced by the person of the matters mentioned in subsection (4) must include evidence given by a person qualified to give expert evidence on the matters.

15   Insertion of new ss 348B and 348C

After section 348A—
insert—

348B    Cognitive impairment

(1)For the purposes of section 348A(4)(a)(i), a person has a cognitive impairment if—

(a)the person has an ongoing impairment in adaptive functioning; and

(b)the person has an ongoing impairment in comprehension, reason, judgment, learning or memory so as to affect functioning in daily life to a material extent; and

(c)the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.

(2)A cognitive impairment may arise from any of the following conditions but may also arise for other reasons—

(a)intellectual disability;

(b)borderline intellectual functioning;

(c)dementia;

(d)an acquired brain injury;

(e)drug or alcohol related brain damage, including fetal alcohol spectrum disorder;

(f)autism spectrum disorder.

348C    Mental health impairment

(1)For the purposes of section 348A(4)(a)(ii), a person has a mental health impairment if—

(a)the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory; and

(b)the disturbance would be regarded as significant for clinical diagnostic purposes; and

(c)the disturbance impairs the emotional wellbeing, judgment or behaviour of the person so as to affect functioning in daily life to a material extent.

(2)A mental health impairment may arise from any of the following disorders but may also arise for other reasons—

(a)an anxiety disorder;

(b)an affective disorder;

(c)a psychotic disorder;

(d)a substance induced mental disorder.

(3)A person does not have a mental health impairment for the purposes of section 348A(4)(a)(ii) if the person’s impairment is caused solely by the temporary effect of ingesting a substance.

16   Insertion of new s 590BA

After section 590B—
insert—

590BA    Advance notice of intention to rely on expert evidence under s 348A

(1)If an accused person intends to adduce expert evidence under section 348A(6) in the person’s trial, the accused person must, within the prescribed period, give notice of that intention.

(2)If the accused person does not give notice as required by subsection (1), the accused person may not, without the leave of the court, adduce the expert evidence.

(3)A notice under this section—

(a)must be in writing; and

(b)must be given to the director of public prosecutions; and

(c)is taken to be given if it is delivered to or left at the Office of the Director of Public Prosecutions or sent by certified mail addressed to the director of public prosecutions at the director’s office.

(4)In this section—

prescribed period means the period of 14 days after the date of the committal for trial of the accused person.

17   Insertion of new pt 9, ch 109

Part 9—
insert—

Chapter 109    Transitional provisions for Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024

761   Application of ch 32 to proceedings

(1)Despite the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, the former provisions continue to apply to a proceeding for an offence committed wholly or partly before the commencement.

(2)The new provisions apply to a proceeding for an offence committed wholly after the commencement.

(3)In this section—

former provisions means the provisions of chapter 32 as in force from time to time before the commencement.

new provisions means the provisions of chapter 32 as in force from the commencement.

Division 4 Jury directions—corroboration

18   Amendment of s 632 (Corroboration)

Section 632(2) and (3)—
omit, insert—

(2)On the trial of a person for an offence, a judge must not direct, warn or suggest to the jury—

(a)that the law regards any class of persons as unreliable witnesses; or

(b)in relation to the uncorroborated evidence of a witness—

(i)that it would be dangerous or unsafe to convict the defendant on the evidence; or

(ii)that the evidence should be scrutinised with great care.

Note—

See also the Evidence Act 1977, sections 94A, 103ZZB, 132BAA and 132BA.

(3)Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice.

Division 5 Criminal offence of coercive control

19   Amendment of s 1 (Definitions)

(1)Section 1—
insert—

coercive control, for chapter 29A, see section 334A.

domestic violence, for chapter 29A, see section 334B.

economic abuse, for chapter 29A, see section 334A.

emotional or psychological abuse, for chapter 29A, see section 334A.

harm, to a person, for chapter 29A, see section 334A.

unauthorised or unreasonable surveillance, of a person, for chapter 29A, see section 334A.

(2)Section 1, definition domestic relationship, note, after ‘that Act.’—
insert—

An intimate personal relationship includes a former intimate personal relationship.

20   Insertion of new pt 5, ch 29A

After part 5, chapter 29—
insert—

Chapter 29A     Coercive control

334A    Definitions for chapter

In this chapter—

coercive control means the offence mentioned in section 334C.

domestic violence see section 334B.

economic abuse means behaviour by a person (the first person) that is coercive, deceptive or unreasonably controls another person (the second person)—

(a)in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour; or

(b)by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or a child.

Examples—

•coercing a person to relinquish control over assets and income

•unreasonably removing or keeping a person’s property, or threatening to do so

•unreasonably disposing of property owned by a person, or owned jointly with a person, without lawful excuse

•preventing a person from having access to joint financial assets for the purposes of meeting normal household expenses without lawful excuse

•preventing a person from seeking or keeping employment

•coercing a person to claim social security payments

•coercing a person to sign a power of attorney that would enable the person’s finances to be managed by another person

•coercing a person to sign a contract for the purchase of goods or services

•coercing a person to sign a contract for the provision of finance, a loan or credit

•coercing a person to sign a contract of guarantee

•coercing a person to sign any legal document for the establishment or operation of a business

emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or degrades the other person.

Examples—

•following a person when the person is out in public, including by vehicle or on foot

•remaining outside a person’s residence or place of work

•repeatedly contacting a person by telephone, SMS message, email or social networking site

•repeated derogatory taunts, including racial taunts

•threatening to disclose a person’s sexual orientation to another person

•threatening to withhold a person’s medication

•preventing a person from making or keeping connections with the person’s family, friends, kin or culture, including cultural or spiritual ceremonies or practices, or preventing the person from expressing the person’s cultural identity

•threatening to withdraw support for a visa for a person or a member of the person’s family

•threatening to have a person or a member of the person’s family deported

•coercing or threatening a person to gain further or larger dowry gifts

•interfering with a person’s ability to access or communicate with the person’s friends or family or with support services by restricting access to any means of communication or otherwise

harm, to a person, means any detrimental effect on the person’s physical, emotional, financial, psychological or mental wellbeing, whether temporary or permanent.

unauthorised or unreasonable surveillance, of a person, means the monitoring or tracking of the person’s movements, activities or interpersonal associations, including, for example, by using technology, that is unauthorised or otherwise unreasonable.

Examples of surveillance by using technology—

•reading a person’s SMS messages

•monitoring a person’s email account or internet browser history

•monitoring a person’s account with a social networking internet site

•using a GPS device to track a person’s movements

•checking the recorded history in a person’s GPS device

•monitoring a person’s activities using cameras or smart home devices

334B    What is domestic violence

(1)Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a domestic relationship that—

(a)is physically or sexually abusive; or

(b)is emotionally or psychologically abusive; or

(c)is economically abusive; or

(d)is threatening; or

(e)is coercive; or

(f)in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.

(2)Behaviour mentioned in subsection (1)—

(a)may occur over a period of time; and

(b)may be more than 1 act, or a series of acts, that when considered cumulatively is abusive, threatening, coercive or causes fear in a way mentioned in that subsection; and

(c)is to be considered in the context of the relationship between the first person and the second person as a whole.

(3)Without limiting subsection (1) or (2), domestic violence includes the following behaviour—

(a)causing personal injury to a person or threatening to do so;

(b)coercing a person to engage in sexual activity or attempting to do so;

(c)damaging a person’s property or threatening to do so;

(d)depriving a person of the person’s liberty or threatening to do so;

(e)threatening a person with the death or injury of the person, a child of the person, or someone else;

(f)threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;

(g)causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;

(h)unauthorised or unreasonable surveillance of a person;

(i)unlawfully stalking, intimidating, harassing or abusing a person;

(j)making a person dependent on, or subordinate to, another person;

(k)isolating a person from friends, relatives or other sources of support;

(l)controlling, regulating or monitoring a person’s day-to-day activities;

(m)depriving a person of, or restricting a person’s, freedom of action;

(n)frightening, humiliating, degrading or punishing a person.

(4)In this section—

coerce, a person, means compel or force a person to do, or refrain from doing, something.

unlawful stalking, intimidation, harassment or abuse see sections 359B and 359D.

334C    Coercive control

(1)A person who is an adult commits an offence (a coercive control offence) if—

(a)the person is in a domestic relationship with another person (the other person); and

(b)the person engages in a course of conduct against the other person that consists of domestic violence occurring on more than 1 occasion; and

(c)the person intends the course of conduct to coerce or control the other person; and

(d)the course of conduct would, in all the circumstances, be reasonably likely to cause the other person harm.

Maximum penalty—14 years imprisonment.

(2)An offence against subsection (1) is a crime.

(3)For subsection (1)(c), the prosecution is not required to prove that the person intended each act of domestic violence that constitutes the course of conduct, when considered in isolation, to coerce or control the other person.

(4)For subsection (1)(d), without limiting the circumstances for the purpose of the subsection, those circumstances include the behaviour of the person and the other person in the context of their relationship as a whole.

(5)In relation to the domestic violence that constitutes the course of conduct—

(a)the prosecution is not required to allege the particulars of any act of domestic violence constituting an offence that would be necessary if the act were charged as a separate offence; and

(b)the jury is not required to be satisfied of the particulars of any act of domestic violence constituting an offence that it would have to be satisfied of if the act were charged as a separate offence; and

(c)all the members of the jury are not required to be satisfied about the same acts of domestic violence.

(6)A person may be charged with—

(a)the coercive control offence; and

(b)1 or more other offences of domestic violence alleged to have been committed by the person against the other person during the course of conduct for the coercive control offence.

(7)The offences mentioned in subsection (6)(a) and (b) may be charged in the 1 indictment.

(8)The person charged as mentioned in subsection (6) may be convicted of and punished for any or all of the offences charged.

(9)However, if the person is—

(a)charged as mentioned in subsection (6); and

(b)sentenced to imprisonment for the coercive control offence and for the other offence or offences;

the court imposing imprisonment may not order that the sentence for the coercive control offence be served cumulatively with the sentence or sentences for the other offence or offences.

Note—

See the Penalties and Sentences Act 1992, section 155 (Imprisonment to be served concurrently unless otherwise ordered).

(10)It is a defence for the person to prove that the course of conduct for the coercive control offence was reasonable in the context of the relationship between the person and the other person as a whole.

(11)It is not a defence to a charge for a coercive control offence that the person believed that any single act of domestic violence that formed part of the course of conduct for the coercive control offence, or each of the acts of domestic violence that constituted the course of conduct when considered in isolation, was reasonable in the context of the relationship between the person and the other person as a whole.

334D    What is immaterial for coercive control

(1)For section 334C(1)(b) and (c), it is immaterial whether the domestic violence that constituted the course of conduct against the other person was carried out in relation to another person or the property of another person.

(2)For section 334C(1)(d)—

(a)it is immaterial whether the course of conduct actually caused harm to the other person; and

(b)if an act of domestic violence that formed part of the course of conduct was unauthorised or unreasonable surveillance or economic abuse of the other person, it is immaterial whether the other person was aware of the act.

(3)Despite particular matters being immaterial for section 334C(1) as mentioned in subsection (1) or (2), nothing in this section prevents evidence being adduced about the matters.

(4)In this section—

other person see section 334C(1)(a).

334E    Court may restrain coercive control

(1)This section applies on the hearing before a court of a charge against a person of coercive control.

(2)Whether the person is found guilty or not guilty or the prosecution ends in another way, if the presiding judge or magistrate considers it desirable, the judge or magistrate may constitute the court to consider whether a restraining order should be made against the person.

(3)The judge or magistrate may act under subsection (2) on application by the Crown or an interested person or on the judge’s or magistrate’s own initiative.

(4)Also, if the restraining order proceeding is started before the Supreme Court or the District Court, the court may order the proceeding to be transferred to a Magistrates Court.

(5)If a court makes an order under subsection (4), the registrar of the court must send to the clerk of the relevant Magistrates Court a copy of the order and the record of proceedings of the hearing of the charge and any application mentioned in subsection (3).

(6)The court hearing the restraining order proceeding may make a restraining order against the person in relation to any person or any property if it considers it desirable to do so having regard to the evidence given at the hearing of the charge and any application under subsection (3) and any further evidence the court may admit.

(7)A restraining order takes effect on the day it is made and continues in force until—

(a)the day stated by the court in the restraining order; or

(b)if no day is stated, the day that is 5 years after the day the restraining order is made.

(8)The court may order that a restraining order continues in force for a period of less than 5 years only if the court is satisfied that the safety of a person in relation to whom the restraining order is made is not compromised by the shorter period.

(9)A restraining order may be varied or revoked at any time by the court, and, if the order provides, by another court.

(10)A person who knowingly contravenes a restraining order commits an offence.

Maximum penalty—120 penalty units or 3 years imprisonment.

(11)However, if the person has been convicted of a domestic violence offence in the 5 years before the contravention, the person is guilty of a misdemeanour and is liable to a fine of 240 penalty units or imprisonment for 5 years.

(12)A restraining order may be made against a person whether or not another order is made against the person in the proceeding for the charge.

(13)A restraining order proceeding is not a criminal proceeding.

(14)A question of fact for a decision under subsection (2) and in a restraining order proceeding must be decided on the balance of probabilities.

(15)In this section—

charge means the charge of coercive control mentioned in subsection (1).

domestic violence offence includes an offence against the Domestic and Family Violence Protection Act 2012, part 7.

Note—

See also the definition of domestic violence offence in section 1.

restraining order, against a person, means any order considered appropriate for the purpose of prohibiting particular conduct, including, for example, contact for a stated period by the person with a stated person or the property of a stated person.

restraining order proceeding means a proceeding started under subsection (2).

334F    Alternative offence to crime of coercive control

Upon an indictment charging a person with the crime of coercive control, the person may alternatively be convicted of the crime of unlawful stalking, intimidation, harassment or abuse if that offence is established by the evidence.

21   Amendment of s 552A (Charges of indictable offences that must be heard and decided summarily on prosecution election)

Section 552A(1)(a), after fourth dot point—
insert—

•section 334C, if the defendant has pleaded guilty

22   Amendment of s 552B (Charges of indictable offences that must be heard and decided summarily unless defendant elects for jury trial)

Section 552B(1)—
insert—

(ga)an offence against section 334E if the defendant is liable to the penalty mentioned in section 334E(11);

23   Insertion of new ss 762 and 763

Part 9, chapter 109, as inserted by this Act—
insert—

762   Application of s 334C to acts of domestic violence constituting coercive control

(1)Section 334C applies only to acts of domestic violence constituting the course of conduct under that section that were done after the commencement.

(2)This section does not limit the Evidence Act 1977, part 6A, division 1A.

763   Conviction for domestic violence offence before commencement

(1)This section applies if a person commits an offence against section 334E(10) after the commencement and the penalty in section 334E(11) applies to the person.

(2)Section 334E(11) applies regardless of whether the conviction mentioned in that subsection was recorded before or after the commencement.

(3)This section applies despite section 11(2) and the Acts Interpretation Act 1954, section 20C(3).

Division 6 New aggravating factors and domestic violence averments

24   Amendment of s 564 (Form of indictment)

Section 564(3A)—
omit, insert—

(3A)An indictment for an offence may also state the offence is—

(a)a domestic violence offence; or

(b)a domestic violence offence committed against a child; or

(c)a domestic violence offence that exposed a child to domestic violence.

Note—

See the Penalties and Sentences Act 1992, section 12A for when a conviction for the offence must also be recorded as a conviction for, or entered in the offender’s criminal history as, a relevant domestic violence offence.

25   Amendment of s 572 (Amendment of indictments)

Section 572(1A)—
omit, insert—

(1A)Subsection (1B) applies if the court considers the offence charged in the indictment is also 1 of the following offences (each a relevant domestic violence offence)—

(a)a domestic violence offence;

(b)a domestic violence offence committed against a child;

(c)a domestic violence offence that exposed a child to domestic violence.

(1B)Without limiting subsection (1), the court may order that the indictment be amended to also state the offence is a relevant domestic violence offence.

Part 4    Amendment of Domestic and Family Violence Protection Act 2012

Division 1 Preliminary

26   Act amended

This part amends the Domestic and Family Violence Protection Act 2012.

Note—

See also the amendment in schedule 1.

Division 2 Court to consider appropriate period for protection order

27   Amendment of s 37 (When court may make protection order)

(1)Section 37—
insert—

(4A)If the court decides to make a protection order against the respondent, the court must consider the appropriate period for which the order is to continue in force.

Note—

See section 97 for matters to be considered when deciding the period for which a protection order is to continue in force.

(2)Section 37(4A) and (5)—
renumber as section 37(5) and (6).

28   Insertion of new pt 10, div 6

Part 10—
insert—

Division 6 Transitional provisions for Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024

237   Deciding period for which protection order continues in force

(1)The amendment of section 37 by the amending provision applies only to an application for a protection order that is made after the commencement.

(2)In this section—

amending provision means the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, section 27.

Division 3 Requirement for court to consider making a temporary protection order

29   Insertion of new s 47B

After section 47A—
insert—

47B    When court must consider making temporary protection order on adjournment

(1)This section applies to a proceeding for an application for a protection order.

Note—

Under section 112, a police protection notice is taken to be an application for a protection order.

(2)If the court adjourns the hearing of the application at the first mention for the proceeding, the court must consider whether to make a temporary protection order.

30   Amendment of s 113 (Duration)

(1)Section 113(3)(c)—
omit, insert—

(c)if the court adjourns the application for a protection order and does not make a domestic violence order or an order to extend the police protection notice under subsection (4)—the proceeding is adjourned; or

Note—

See section 47B for when the court must consider whether to make a temporary protection order.

(2)Section 113—
insert—

(3A)For subsection (3)(c), in exceptional circumstances a court may adjourn the application for a protection order and make an order to extend the police protection notice—

(a)for not more than 5 business days; or

(b)if the court is not sitting in the next 5 business days—until the next anticipated sitting date for the court.

(3B)An order to extend the police protection notice under subsection (4) may be made without appearances by the parties to the application for the protection order.

(3C)A police protection notice may be extended only once under subsection (4).

(3D)The court must take reasonable steps to notify the police commissioner and the parties to the application for the protection order of any extension to the police protection notice.

(3E)A failure to comply with subsection (7) does not invalidate or otherwise affect the extension of the police protection notice.

(3F)If the court makes an order to extend the police protection notice, section 47B applies at the first mention for the proceeding that occurs after the making of the order.

(3)Section 113—
insert—

(5)In this section—

exceptional circumstances means unforeseen circumstances that cause the operation of the court to be significantly reduced.

Examples—

natural disaster, severe weather event, major public health event

(4)Section 113(3A) to (5)—
renumber as section 113(4) to (11).

31   Insertion of new ss 238–239

After section 237, as inserted by this Act—
insert—

238   Application of s 47B to particular proceedings

(1)This section applies to a proceeding for an application for a protection order.

(2)Section 47B applies to the proceeding only if the application is filed after the commencement.

(3)However, if the application is a police protection notice taken to be an application for a protection order under section 112, section 47B applies to the proceeding only if the police protection notice is issued after the commencement.

239   Application of s 113 to particular proceedings

Section 113, as amended by the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, applies to a police protection notice, whether the notice is issued before or after the commencement.

Division 4 Media may apply for transcript of domestic and family violence proceedings

32   Insertion of new ss 157D and 157E

Before section 158—
insert—

157D    Definitions for division

In this division—

accredited media entity means an entity listed as an accredited media entity in the Supreme Court’s media accreditation policy.

identifying matter, in relation to a person, means—

(a)the name, address, place of employment or another particular of the person or another person that is likely to lead to the identification of the person; or

(b)a photograph, picture, videotape, digital image or other visual representation or physical description of the person or another person that is likely to lead to the identification of the person; or

(c)the location of the court in which the proceeding was conducted that is likely to lead to the identification of the person; or

(d)the name of the presiding magistrate, the prosecutor, the defence lawyer, a support person or a witness in the proceeding that is likely to lead to the identification of the person; or

(e)a material fact in the proceeding that is likely to lead to the identification of the person.

proceeding under this Act includes a proceeding for an offence against a provision of part 7.

Supreme Court’s media accreditation policy means the media accreditation policy in effect and made under or appended to a practice direction of the Supreme Court.

157E    What information identifies or is likely to identify a person

For this division, information identifies or is likely to lead to the identification of a person if the information includes identifying matter about the person.

33   Amendment of s 159 (Prohibition on publication of certain information for proceeding)

(1)Section 159(1)(a), after ‘information’—
insert—

, including a photograph, picture, videotape and any other visual representation,

(2)Section 159(1)(b)—
omit, insert—

(b)information that identifies, or is likely to lead to the identification of—

(i)a person as a party to a proceeding under this Act; or

(ii)a person as a witness in a proceeding under this Act (other than a police officer); or

(iii)a child.

(3)Section 159(2)—
insert—

(ea)to the publication of information by an accredited media entity, if the information does not identify, and is not likely to lead to the identification of, a person mentioned in subsection (1)(b); or

(4)Section 159(2)(ea) to (g)—
renumber as section 159(2)(f) to (h).

(5)Section 159(3), definition information—
omit.

34   Amendment of s 160 (Prohibition on obtaining copies of documents for proceeding)

(1)Section 160(2)(d), after ‘person’—
insert—

, other than a media entity including an accredited media entity,

(2)Section 160(2)—
insert—

(ea)an accredited media entity authorised by a judicial officer under section 161A; or

(3)Section 160(2)(ea) to (h)—
renumber as section 160(2)(f) to (i).

35   Insertion of new s 161A

After section 161—
insert—

161A    Accredited media entity may apply for copy of transcript of proceeding for application

(1)A judicial officer may authorise an accredited media entity to receive a copy of a transcript of a proceeding for an application for a domestic violence order.

(2)In deciding whether to give an authorisation under subsection (1), the judicial officer must have regard to the principles mentioned in section 4.

(3)The judicial officer may give an authorisation under subsection (1) if—

(a)the applicant gives an undertaking to comply with the Domestic and Family Violence Media Guide, as in force at the time the authorisation is given; and

(b)the judicial officer is satisfied it is in the public interest to give the authorisation.

(4)In this section—

Domestic and Family Violence Media Guide means the document by that title made by the chief executive and published on the department’s website from time to time.

36   Insertion of new ss 240 and 241

Part 10, division 6, as inserted by this Act—
insert—

240   Section 159(2)(f) applies to proceedings started after commencement

Section 159(2)(f) applies to information that relates to a proceeding under this Act only if the proceeding started after the commencement.

241   Section 161A applies to proceedings started after commencement

A judicial officer may give an authorisation under section 161A in relation to a copy of a transcript of a proceeding for an application for a domestic violence order only if the proceeding started after the commencement.

37   Amendment of schedule (Dictionary)

Schedule—
insert—

accredited media entity, for part 5, division 4, see section 157D.

identifying matter, in relation to a person, for part 5, division 4, see section 157D.

proceeding under this Act, for part 5, division 4, see section 157D.

Supreme Court’s media accreditation policy, for part 5, division 4, see section 157D.

Division 5 Court-based perpetrator diversion scheme

38   Amendment of s 37 (When court may make protection order)

Section 37(2)(a)(ii) and (b) and (3), after ‘intervention order’—
insert—

or a diversion order

39   Amendment of s 91 (When court can vary domestic violence order)

Section 91(3)(a) and (b) and (4), after ‘intervention order’—
insert—

or a diversion order

40   Insertion of new pt 4A

After part 4—
insert—

Part 4A    Diversion orders scheme

Division 1 Preliminary

135A    Definitions for part

(1)In this part—

alleged offence see section 135C(1)(a) and (3).

approved diversion program means a program approved by the chief executive under section 135T(2).

counselling means counselling, by an approved provider, of a kind that may be beneficial in helping a defendant to overcome harmful behaviour related to domestic violence.

diversion order see section 135B(1).

eligibility criteria means the criteria for participation in the scheme set out in section 135C.

notice of completion see section 135S(1).

scheme means the diversion orders scheme under section 135B.

suitability assessment report means a report that complies with section 135G(1).

(2)In this part, a reference to domestic violence includes a reference to associated domestic violence.

135B    Diversion orders scheme

(1)This part provides for a scheme for the making of an order (a diversion order) in relation to a defendant who is an adult appearing before a Magistrates Court charged with an offence of contravening a domestic violence order or police protection notice.

(2)Under the scheme, the purpose of making a diversion order is to—

(a)intervene at an early stage in the proceeding for the offence to direct the defendant to attend an approved diversion program, or counselling with an approved provider, to address the defendant’s behaviour and to promote ongoing behavioural change in the defendant; and

(b)hold the defendant accountable for the acts of domestic violence for which the defendant has accepted responsibility; and

(c)facilitate the rehabilitation of the defendant to eliminate domestic violence from the defendant’s behaviour and the community generally; and

(d)reduce the risk of harm to, and increase the safety of, victims of domestic violence.

(3)The scheme applies only if there is an approved provider who can provide an approved diversion program or counselling for the defendant under the scheme.

Division 2 Eligibility

135C    Eligibility criteria for participation in scheme

(1)A defendant who is an adult is eligible for participation in the scheme if the court is satisfied that—

(a)the defendant has been charged with an offence of contravening a domestic violence order or police protection notice (the alleged offence); and

(b)the alleged offence is the only offence of contravening the domestic violence order or police protection notice that the defendant has been charged with; and

(c)the facts constituting the alleged offence are not otherwise charged as an indictable offence; and

(d)the defendant has accepted responsibility for the alleged facts constituting the alleged offence detailed in the prosecution’s written summary; and

(e)the defendant has been granted bail in relation to the alleged offence; and

(f)another domestic violence order or police protection notice has not previously been made or issued against the defendant; and

(g)the defendant has not previously been convicted of any of the following offences committed when the defendant was an adult—

(i)an offence of contravening a domestic violence order, police protection notice or release conditions; or

(ii)any other offence involving domestic violence; and

(h)the defendant has not previously been referred to participate in an approved diversion program or counselling with an approved provider under the scheme; and

(i)the defendant indicates a willingness to participate in an approved diversion program or counselling with an approved provider under the scheme, including a willingness to be assessed for suitability to participate in the scheme under section 135F.

(2)However, despite subsection (1)(b), the court may decide that the defendant meets the eligibility criteria if—

(a)the defendant has been charged with the alleged offence and 1 or more other offences of contravening the domestic violence order or police protection notice; and

(b)the charges are for offences of the same character, or offences committed in the prosecution of a single purpose, and there is a strong factual and temporal connection between or among the offences; and

Example—

The defendant is charged with 2 offences of contravening a domestic violence order. Each contravention is the sending of an SMS message and the messages were sent separately on the same day.

(c)the defendant has accepted responsibility for the alleged facts constituting the other offence or offences detailed in the prosecution’s written summary; and

(d)the defendant is appearing before the court in relation to all the charges mentioned in subsection (2)(a); and

(e)the defendant has been granted bail in relation to the other offence or offences.

(3)If subsection (2)(a) to (e) applies, a reference to the alleged offence in another provision of this part includes a reference to the other offence or offences.

(4)Despite subsection (1), the court may decide that the defendant is not eligible for the scheme, having regard to—

(a)the seriousness of the conduct constituting the alleged offence or other offence or offences; and

(b)the defendant’s criminal history and domestic violence history.

(5)If the defendant does not have a criminal history or domestic violence history, the police commissioner must ensure the court is informed of the fact.

135D    Evidence relating to requirement to accept responsibility relating to alleged offence

(1)The defendant is not required to plead guilty to the alleged offence to be eligible for the scheme.

(2)The defendant’s acceptance of responsibility under section 135C(1)(d) or (2)(c)—

(a)is not taken to be a plea to the charge for the offence entered by the defendant; and

(b)is not admissible in evidence against the defendant in any criminal proceeding.

(3)A police officer who receives information derived from the defendant’s acceptance of responsibility under section 135C(1)(d) or (2)(c) must not use the information for a proceeding for an offence.

(4)Subsection (3) applies despite section 169L(3).

Division 3 Suitability assessment reports

135E    Adjournment for obtaining suitability assessment report

(1)This section applies if the court is satisfied the defendant meets the eligibility criteria and is considering making a diversion order in relation to the defendant.

(2)The court must order the defendant to—

(a)report to a stated approved provider at a stated place, and within a stated period, to allow the approved provider to assess the defendant’s suitability to participate in an approved diversion program or counselling; and

(b)comply with every reasonable direction given to the defendant by an approved provider.

(3)The stated period for subsection (2)(a) must be 14 days after the order is made, or a longer period allowed by the court.

(4)If the court makes an order under subsection (2)—

(a)the prosecution must give the court—

(i)a written summary of the alleged facts constituting the alleged offence; and

(ii)a copy of the defendant’s criminal history; and

(b)the clerk of the court must give the stated approved provider mentioned in subsection (2) a copy of—

(a)the order; and

(b)the summary of the alleged facts constituting the alleged offence; and

(c)the defendant’s criminal history.

(5)If the defendant fails to report to the approved provider as required under an order made under subsection (2)(a), the approved provider must advise the registrar of the court within 2 business days after the failure to report.

135F    Assessment of suitability of defendant

The approved provider must assess the defendant’s suitability to participate in an approved diversion program or counselling with an approved provider taking into consideration the following—

(a)the defendant’s character and personal history;

(b)the defendant’s language skills;

(c)the defendant’s cultural background, including whether the defendant identifies as an Aboriginal or Torres Strait Islander person;

(d)any disabilities, psychiatric or psychological conditions of the defendant;

(e)any alcohol or drug problems of the defendant;

(f)the effect of the matters mentioned in paragraph (a) to (e) on the defendant’s ability to participate in an approved diversion program or counselling;

(g)whether there is an approved diversion program or counselling that is available and suitable, including culturally appropriate, for the defendant;

(h)whether and, if so, how the defendant’s participation in the scheme could affect the safety, protection or wellbeing of the aggrieved or a named person in the domestic violence order or police protection notice or of someone else;

(i)any other relevant matters.

135G    Suitability assessment report

(1)The approved provider must prepare a suitability assessment report about the defendant that states—

(a)whether the defendant is suitable for participation in the scheme, having regard to the matters mentioned in section 135F(a) to (i); and

(b)if the defendant is suitable for participation in the scheme—

(i)the day on which it is anticipated that the defendant will start attending the approved diversion program or counselling; and

(ii)the name of the approved provider who will provide the approved diversion program or counselling; and

(iii)the estimated period within which the defendant is likely to complete the approved diversion program or counselling.

(2)The approved provider must give the suitability assessment report to the court within 14 days after completing the assessment, or a longer period allowed by the court.

(3)The court must give a copy of the suitability assessment report to—

(a)the prosecutor; and

(b)the defendant.

135H    Immunity from prosecution

(1)A person is not liable to prosecution for an offence resulting from any admission made by the person for the purposes of preparing a suitability assessment report for the person.

(2)The admission, and any evidence obtained because of the admission, is not admissible against the person in a prosecution for the offence.

(3)Subsections (1) and (2) do not prevent the person from being prosecuted for the offence if evidence of the offence, other than the admission made by the person or evidence obtained because of the admission, exists.

(4)A police officer who receives information derived from any admission made by the person for the purposes of preparing the suitability assessment report must not use the information for a proceeding for an offence.

(5)Subsection (4) applies despite section 169L(3).

Division 4 Making diversion orders

135I    When court may make diversion order

(1)A court may make a diversion order in relation to a defendant if—

(a)the court is satisfied the defendant still meets the eligibility criteria; and

(b)the defendant consents to the making of the order; and

(c)the court is satisfied that, immediately or within a reasonable period, the defendant will be able to start attending an approved diversion program, or have counselling with an approved provider, that is accessible and otherwise suitable for the defendant; and

(d)the court is satisfied that, if the order were made, the defendant would not pose an unacceptable risk to the safety, protection or wellbeing of—

(i)the aggrieved or a named person in the domestic violence order or police protection notice; or

(ii)a person who is in a relevant relationship with the defendant; or

(iii)a person employed or engaged by an approved provider; and

(e)it is appropriate and desirable to make the order, having regard to the purpose of making a diversion order under the scheme.

Note—

See section 135B(2).

(2)In deciding for subsection (1)(e) whether it is appropriate or desirable to make a diversion order in relation to a defendant, the court must consider—

(a)the principles mentioned in section 4; and

(b)the suitability assessment report about the defendant; and

(c)any other relevant matter, including any expressed wishes of the person named as the aggrieved in the domestic violence order or police protection notice.

(3)If the complainant is not the person named as the aggrieved in the domestic violence order or police protection notice, a reference to the aggrieved in subsection (2)(c) includes a reference to the complainant.

(4)The court may make a diversion order requiring the defendant to attend counselling with an approved provider only if there is no appropriate approved diversion program that the defendant can attend.

(5)The diversion order must state the period, of not more than 1 year, within which the defendant is required to complete the approved diversion program or counselling.

135J    Adjournment of proceeding on making of diversion order

If the court makes a diversion order, the court may adjourn the proceeding for the alleged offence for a period of not more than 1 year to allow the defendant to attend and complete the approved diversion program or counselling under the order.

135K    Diversion order to be explained

(1)Before making a diversion order, to assist the defendant in making a decision about whether to consent to the making of the order, the court must explain, or cause to be explained, to the defendant—

(a)the purpose and effect of the order; and

(b)the consequences of contravening the order; and

Note—

Under sections 37(2)(a)(ii) and 91(3)(a), a failure to comply with a diversion order is relevant to the making of a protection order and the variation of a domestic violence order.

(c)the potential effect on the defendant’s right to privacy if the defendant participates in the scheme; and

Examples of effects on the defendant’s right to privacy—

•potential sharing of information that may otherwise be private

•provision to an approved provider of the summary of the alleged facts constituting the alleged offence and the defendant’s criminal history for the purpose of preparing a suitability assessment report

(d)that the order may be amended or revoked on the application of the defendant or a prosecutor or on the court’s own initiative.

(2)The explanation must be made in language or in a way likely to be readily understood by the defendant.

(3)A failure to comply with subsection (1) or (2) does not invalidate or otherwise affect the diversion order.

Division 5 Variation and revocation of diversion orders

135L    Power of court to vary or revoke diversion order

(1)The court may, either on its own initiative or on an application by the prosecution or defendant (each the applicant), vary or revoke the diversion order.

(2)Before the court or applicant acts under subsection (1), the court or applicant must advise the approved provider for the approved diversion program or counselling in which the defendant is participating of—

(a)the court’s intention to vary or revoke the diversion order; or

(b)the applicant’s intention to apply to the court under this section.

(3)The court may—

(a)continue the diversion order; or

(b)vary the diversion order; or

(c)revoke the diversion order.

(4)Despite section 135J, the court may vary the diversion order to extend the period within which the defendant is required to complete the approved diversion program or counselling.

(5)If the court revokes the diversion order, the defendant must enter a plea to the charge of the alleged offence.

135M    Matters court must consider

(1)When deciding whether to continue, vary or revoke the diversion order, the court must consider—

(a)the defendant’s continued eligibility for the approved diversion program or counselling in which the defendant is participating, including but not limited to the following—

(i)whether the defendant has been charged with, or convicted of, another contravention of the domestic violence order or police protection notice;

(ii)whether the defendant has been charged with, or convicted of, another domestic violence offence;

(iii)whether another domestic violence order or police protection notice has been made or issued against the defendant;

(iv)the defendant’s willingness to continue to participate in the approved diversion program or counselling; and

(b)any information about the defendant the approved provider for the program or counselling in which the defendant is participating gives the court; and

(c)any material change to the defendant’s circumstances since the diversion order was made; and

(d)any risk to the safety, protection or wellbeing of the aggrieved or a named person in the domestic violence order or police protection notice or of someone else, including any statements provided by the aggrieved or other person; and

(e)any other relevant matter, including any expressed wishes of the person named as the aggrieved in the domestic violence order or police protection notice.

(2)If the complainant is not the person named as the aggrieved in the domestic violence order or police protection notice, a reference to the aggrieved in subsection (1)(e) includes a reference to the complainant.

Division 6 Effect of diversion orders

135N    Ending of diversion order

(1)This section applies if a notice of completion in relation to the defendant is given to the registrar of the court.

(2)On the day the notice of completion is received by the court—

(a)the diversion order ends; and

(b)the defendant is not required to enter a plea to the charge of the alleged offence; and

(c)the charge is taken to be dismissed by the court; and

(d)the defendant is taken to be discharged by the court without any finding of guilt; and

(e)the proceeding for the alleged offence ends.

(3)The defendant is not liable to be further prosecuted for the alleged offence.

135O    When court may have regard to partial compliance under diversion order

If at any stage the defendant is convicted of the alleged offence, the court may, when sentencing the defendant, have regard to any participation by the defendant in an approved diversion program or counselling with an approved provider under the diversion order.

135P    Operation of part and power of court

To remove any doubt, it is declared that—

(a)the making of a diversion order, or an order for the defendant to report to an approved provider under section 135E(2)(a), does not affect the operation of any other order made under this Act in relation to the defendant; and

(b)nothing in this part affects the power of the court to make or vary any other order the court may make.

Division 7 Obligations of approved providers

135Q    General obligation

(1)This section applies to an approved provider who is—

(a)assessing the defendant’s suitability to participate in the scheme under section 135F; or

(b)providing an approved diversion program or counselling for the defendant.

(2)The approved provider has an ongoing obligation while carrying out the assessment or providing the program or counselling to—

(a)assess whether the defendant’s behaviour may pose a risk to the safety, protection or wellbeing of the aggrieved or a named person in the domestic violence order or police protection notice; and

(b)assist with providing services to the aggrieved or a named person in the domestic violence order or police protection notice.

135R    Contravention of diversion order

(1)If an approved provider becomes aware that a defendant has contravened a diversion order, the approved provider must give the court and the police commissioner a notice in the approved form stating—

(a)that the defendant has contravened the diversion order; and

(b)the nature of the contravention; and

(c)the date of the contravention.

(2)The approved provider must give the notice within 7 days after the approved provider becomes aware of the contravention.

135S    Notice of completion

(1)If an approved provider is satisfied the defendant has completed an approved diversion program or counselling with the approved provider, the approved provider must give the defendant, the registrar of the court and the police commissioner a notice in the approved form (a notice of completion) stating—

(a)that the defendant has completed the program or counselling; and

(b)the date on which the defendant completed the program or counselling.

(2)The approved provider must give the notice of completion within 14 days after the defendant completes the program or counselling.

Division 8 Approvals

135T    Approval of providers and diversion programs

(1)The chief executive may approve an entity as an approved provider if the chief executive is satisfied that the entity has appropriate experience and qualifications to provide an approved diversion program or counselling under the scheme.

(2)The chief executive may approve a program as an approved diversion program if the chief executive is satisfied that—

(a)the program aims to—

(i)increase participants’ accountability for domestic violence; and

(ii)help participants to change their behaviour; and

(iii)increase the safety, protection and wellbeing of persons against whom domestic violence has been committed; and

(b)the program satisfies any other criteria prescribed by regulation.

(3)An approval mentioned in subsection (1) or (2) must be in writing.

(4)The chief executive must—

(a)prepare, and keep up to date, a list of approved providers and approved diversion programs; and

(b)give a copy of the list to—

(i)the Chief Magistrate; and

(ii)the police commissioner.

41   Amendment of s 184 (Service of order on respondent)

(1)Section 184, heading, after ‘respondent’—
insert—

or defendant

(2)Section 184(1)—
insert—

(d)makes a diversion order.

(3)Section 184(2) and (3), after ‘respondent’—
insert—

or defendant

(4)Section 184(4)—
omit, insert—

(4)Subsections (2) and (3) do not apply if the respondent or defendant is present in court when the order is made or varied and the clerk of the court—

(a)gives a copy of the order, or varied order, to the respondent or defendant, or the respondent’s or defendant’s appointee, at the court; or

(b)sends a copy of the order, or varied order, to the respondent’s or defendant’s last known address.

(5)Section 184(8), ‘or an intervention order’—
omit, insert—

, an intervention order or a diversion order

(6)Section 184(10), definition appointee, after ‘respondent’—
insert—

or defendant

42   Amendment of s 184A (Substituted service)

Section 184A(1), (2), (3) and (5), after ‘respondent’—
insert—

or defendant

43   Insertion of new s 186A

After section 186—
insert—

186A    Complainant to be informed of diversion order

(1)This section applies if a court makes a diversion order in relation to a defendant.

(2)The police commissioner must inform the complainant of the making of the diversion order.

(3)The police commissioner is not required to comply with subsection (2) if—

(a)the complainant was present in court when the order was made; or

(b)the police commissioner can not locate the complainant, or identify an address for the place of residence or business of the complainant, after making all reasonable enquiries.

(4)Failure to comply with this section does not invalidate or otherwise affect the diversion order.

44   Amendment of s 189 (Evidentiary provision)

Section 189(2)—
insert—

(e)a diversion order.

45   Amendment of schedule (Dictionary)

(1)Schedule, definition counselling—
omit.

(2)Schedule—
insert—

alleged offence, for part 4A, see section 135C(1)(a) and (3).

approved diversion program, for part 4A, see section 135A.

counselling—

(a)for part 3, division 6, see section 68; or

(b)for part 4A, see section 135A.

diversion order, for part 4A, see section 135B(1).

eligibility criteria, for part 4A, see section 135A.

notice of completion, for part 4A, see section 135S(1).

scheme, for part 4A, see section 135A.

suitability assessment report, for part 4A, see section 135A.

(3)Schedule, definition approved provider, after ‘section 75(1)’—
insert—

or 135T(1)

Division 6 Criminal offence of engaging in domestic violence or associated domestic violence to aid respondent

46   Insertion of new s 179A

After section 179—
insert—

179A    Engaging in domestic violence or associated domestic violence to aid respondent

(1)A person who is an adult commits an offence if, without reasonable excuse—

(a)the person engages in domestic violence behaviour against another person who is the aggrieved or a named person in a domestic violence order, police protection notice or release conditions; and

(b)the domestic violence behaviour is engaged in with the intent of aiding the respondent to the order, notice or conditions; and

(c)the person knew, or ought reasonably to have known, the other person was the aggrieved or a named person in the order, notice or conditions.

Maximum penalty—120 penalty units or 3 years imprisonment.

(2)However, if the person derives a benefit from engaging in the domestic violence behaviour, the person is guilty of a crime and is liable to a fine of 240 penalty units or imprisonment for 5 years.

Example of a person who may derive a benefit from engaging in domestic violence behaviour—

a private investigator under the Security Providers Act 1993

(3)For subsection (1)(a), it is immaterial whether the respondent to the domestic violence order, police protection notice or release conditions knew that the person had engaged in domestic violence behaviour against the aggrieved or a named person in the order, notice or conditions.

(4)An evidential burden is placed on the defendant in relation to showing a reasonable excuse for subsection (1).

(5)In this section—

benefit see the Criminal Code, section 1.

domestic violence behaviour means behaviour that, if engaged in by the respondent to a domestic violence order, police protection notice or release conditions would be domestic violence against the aggrieved or associated domestic violence against a named person in the order, notice or conditions.

47   Amendment of s 180 (Aggrieved or named person not guilty of offence)

Section 180, from ‘conditions,’—
omit, insert—

conditions—

(a)does not aid, abet, counsel or procure the commission of an offence against section 177, 178 or 179, and is not punishable as a principal offender, because the person encourages, permits or authorises conduct by the respondent that contravenes the domestic violence order, police protection notice or release conditions; and

(b)does not aid, abet, counsel or procure the commission of an offence against section 179A, and is not punishable as a principal offender, because the person encourages, permits or authorises conduct that constitutes the offence.

Division 7 Additional standard condition on protection orders and police protection notices

48   Amendment of s 56 (Domestic violence order must include standard conditions)

(1)Section 56(1)—
insert—

(aa)must not organise, encourage, ask, tell, force or engage another person to do something that, if done by the respondent, would be domestic violence against the aggrieved; and

(2)Section 56(1)(b)—
insert—

(iii)must not organise, encourage, ask, tell, force or engage another person to do something that, if done by the respondent, would be associated domestic violence against the named person; and

(3)Section 56(1)(c)—
insert—

(iv)must notorganise, encourage, ask, tell, force or engage another person to do something that, if done by the respondent, would be associated domestic violence against the child; and

(v)must not organise, encourage, ask, tell, force or engage another person to do something that exposes the child to domestic violence.

(4)Section 56(1)(aa) to (c)—
renumber as section 56(1)(b) to (d).

49   Amendment of s 60 (Contact by lawyer not prohibited)

(1)Section 60—
insert—

(1A)To remove any doubt, it is declared that a condition mentioned in section 56(1)(b), (c)(iii) or (d)(iv) or (v) does not prohibit a respondent from asking—

(a)a lawyer to contact the aggrieved or a named person; or

(b)another person, including a lawyer, to contact or locate the aggrieved or a named person for a purpose authorised under an Act.

(2)Section 60(1A) and (2)—
renumber as section 60(2) and (3).

50   Amendment of s 106 (Standard conditions)

(1)Section 106—
insert—

(aa)must not organise, encourage, ask, tell, force or engage another person to do something that, if done by the respondent, would be domestic violence against the aggrieved; and

(2)Section 106(b)—
insert—

(iii)must not organise, encourage, ask, tell, force or engage another person to do something that, if done by the respondent, would be associated domestic violence against the named person; and

(3)Section 106(c)—
insert—

(iv)must not organise, encourage, ask, tell, force or engage another person to do something that, if done by the respondent, would be associated domestic violence against the child; and

(v)must not organise, encourage, ask, tell, force or engage another person to do something that exposes the child to domestic violence.

(4)Section 106(aa) to (c)—
renumber as section 106(b) to (d).

51   Insertion of new s 242

After section 241, as inserted by this Act—
insert—

242   Amendments of standard conditions for domestic violence orders and police protection notices

(1)Section 56, as amended by the amending Act, applies to domestic violence orders made or varied after the commencement.

(2)Section 106, as amended by the amending Act, applies to police protection notices issued after the commencement.

(3)In this section—

amending Act means the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024.

Part 5    Amendment of Domestic and Family Violence Protection Regulation 2023

52   Regulation amended

This part amends the Domestic and Family Violence Protection Regulation 2023.

53   Amendment of s 2 (Publication of certain information—Act, s 159)

(1)Section 2(1), ‘section 159(2)(g)’—
omit, insert—

section 159(2)(h)

(2)Section 2(3)(b), after ‘under’—
insert—

the Act or

(3)Section 2—
insert—

(5)However, the publication is not permitted if the publication is of information that identifies, or is likely to lead to the identification of, a child.

54   Insertion of new s 7

After section 6—
insert—

7   Transitional provision for Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024

The reference in section 2(3)(b) to a conviction of an offence under the Act, is a reference to a conviction of an offence under the Act if the charge for the offence was laid after the commencement.

Part 6    Amendment of Evidence Act 1977

Division 1 Preliminary

55   Act amended

This part amends the Evidence Act 1977.

Division 2 Improper questions

56   Replacement of s 21 (Improper questions)

Section 21—
omit, insert—

21   Improper questions

(1)The court must disallow a question put to a witness in cross-examination or inform a witness a question need not be answered, if the court considers the question is an improper question.

(2)For subsection (1), an improper question includes a question that—

(a)is misleading or confusing; or

(b)is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or

(c)is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or

(d)has no basis other than a stereotype (for example, a stereotype based on the witness’s age, race, culture, gender, sex, sex characteristics, sexuality or mental, intellectual or physical disability).

(3)In deciding whether a question is an improper question, the court must take into account—

(a)any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, race, culture, gender identity, sex, sex characteristics, sexuality, education, language background and skills and level of maturity and understanding; and

(b)any mental, intellectual or physical disability to which the witness is, or appears to be, subject and of which the court is, or is made, aware; and

(c)the context in which the question is put, including—

(i)the nature of the proceeding; and

(ii)in a criminal proceeding—the nature of the offence to which the proceeding relates; and

(iii)the relationship (if any) between the witness and any other party to the proceeding.

(4)Subsection (3) does not limit the matters the court may take into account in deciding whether a question is an improper question.

(5)A question is not an improper question merely because—

(a)the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or

(b)the question requires the witness to discuss a subject that the witness could consider to be private or distasteful.

(6)A party may object to a question put to a witness on the ground that it is an improper question.

(7)However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.

(8)A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.

57   Insertion of new pt 9, div 14A

Part 9—
insert—

Division 14A Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024

160A    Application of s 21 to proceedings

(1)Section 21 applies to a criminal proceeding regardless of when—

(a)the offence the subject of the proceeding was committed; or

(b)the defendant in the proceeding was charged; or

(c)the proceeding was started.

(2)Section 21 applies to a civil proceeding regardless of when the proceeding was started.

Division 3 Exclusion of public and evidence about complainant’s sexual reputation and sexual activities; Jury directions for sexual offences; Sexual offence expert evidence panel

58   Insertion of new s 103SA

Before section 103T—
insert—

103SA    Judge may request indication from parties

(1)Before a criminal proceeding that is a trial by jury commences, the judge may request that the prosecution and defence (or, if the defendant is unrepresented, the defendant) each inform the judge of whether it is likely that evidence will be adduced in the trial that may require the giving of a direction about all or some of the matters mentioned in subdivision 2.

(2)If the judge is informed under subsection (1) that it is likely that evidence will be adduced that may require the giving of a particular direction, the judge is not required to form a view, at that time, about whether to give that direction.

(3)Nothing in this section prevents the prosecution, defence or the defendant from later requesting, or making submissions in relation to, the giving of a direction about which the judge was not informed under subsection (1).

59   Insertion of new pt 6B

After part 6A—
insert—

Part 6B    Evidence related to sexual offences

Division 1 Exclusion of public

103ZE    Court to exclude public while complainant gives evidence

(1)This section applies in relation to a criminal proceeding that relates, wholly or partly, to a charge for a sexual offence.

(2)While a complainant gives evidence in the proceeding, the court must exclude from the courtroom all persons other than the following—

(a)the counsel and solicitor of the complainant;

(b)the defendant and the defendant’s counsel and solicitor;

(c)a Crown law officer or a person authorised by a Crown law officer;

(d)the prosecutor;

(e)an intermediary under part 2, division 4C for the complainant;

(f)any person whose presence is, in the opinion of the court, necessary or desirable for the proper conduct of the proceeding;

(g)any person whose presence will provide emotional support to the complainant;

(h)if the complainant is under or apparently under the age of 17 years—the parent or guardian of the complainant unless, in the court’s opinion, the presence of that person would not be in the complainant’s interests;

(i)any person who makes application to the court to be present and whose presence, in the court’s opinion—

(i)would serve a proper interest of the applicant; and

(ii)would not be prejudicial to the interests of the complainant.

(3)Subsection (2) applies regardless of the way in which the complainant gives evidence.

Examples of ways in which the complainant may give evidence—

•the complainant gives evidence outside the courtroom and the evidence is transmitted to the courtroom by audio visual link or other means

•the complainant’s evidence is pre-recorded and later presented in the courtroom

•an audio visual or audio recording of the complainant, such as body worn camera footage of the complainant speaking to a police officer or another person, is presented in the courtroom

(4)Subsection (2) does not limit the power of the court to exclude from the courtroom any person, including a defendant.

(5)If the criminal proceeding is a trial by jury, the judge must instruct the jury that—

(a)they should not draw any inference as to the defendant’s guilt from the exclusion of the public; and

(b)the probative value of the evidence is not increased or decreased because of the exclusion of the public; and

(c)the evidence is not to be given any greater or lesser weight because of the exclusion of the public.

Division 2 Prohibitions and restrictions in relation to particular questions and evidence

103ZF    Application of division

This division applies in relation to a criminal proceeding that relates, wholly or partly, to a charge for a sexual offence.

103ZG    Prohibition on questions and evidence concerning sexual reputation of complainant

The court must not allow any questions as to, or admit any evidence of, the sexual reputation of the complainant.

103ZH    Restriction on questions and evidence concerning complainant’s sexual activities

The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities, whether consensual or non-consensual, of the complainant (other than those to which the charge relates), without the leave of the court.

103ZI    Application for leave

An application for leave under section 103ZH—

(a)in the case of a summary trial, must be filed with the Magistrates Court at the place at which the trial will be held and served on each other party to the trial at least 7 days before the trial; and

(b)in the case of a committal proceeding, must be filed with the Magistrates Court at the place at which the proceeding will be held, and served on each other party to the proceeding at least 7 days before the proceeding; and

(c)in the case of a trial, must be filed with the Supreme Court or District Court, as the case requires, and served on each other party to the trial—

(i)at least 14 days before the day on which the trial is listed to commence; or

(ii)if a special hearing is to be held—at least 14 days before the hearing.

103ZJ    Application for leave out of time

If it is in the interests of justice to do so, the court may hear and decide an application for leave under section 103ZH after the expiry of the relevant time limit stated in section 103ZI.

(2)For the purposes of subsection (1), in the absence of evidence to the contrary, a person is taken to know that a complainant privacy order or an interim complainant privacy order is in force if a court has electronically transmitted notice of the order to the person.

Division 5 Other provisions

103ZZZR    Executive officer may be taken to have committed offence

(1)If a corporation commits an offence against section 103ZZN(1), 103ZZZC or 103ZZZQ(1), each executive officer of the corporation is taken to have also committed the offence if—

(a)the officer authorised or permitted the corporation’s conduct constituting the offence; or

(b)the officer was, directly or indirectly, knowingly concerned in the corporation’s conduct.

(2)The executive officer may be proceeded against for, and convicted of, the offence whether or not the corporation has been proceeded against for, or convicted of, the offence.

(3)This section does not affect either of the following—

(a)the liability of the corporation for the offence against section 103ZZN(1), 103ZZZC or 103ZZZQ(1);

(b)the liability, under the Criminal Code, chapter 2, of any person, whether or not the person is an executive officer of the corporation, for the offence against section 103ZZN(1), 103ZZZC or 103ZZZQ(1).

(4)In this section—

executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

103ZZZS    Part provides additional protection

This part is in addition to and does not prejudice any other provision or rule of law directed towards the protection of witnesses or other persons in a criminal proceeding from identification.

103ZZZT    Part does not affect other laws

This part does not prevent a person from giving information that is permitted or required to be given under another law.

103ZZZU    Other laws prohibiting or restricting publication not limited or otherwise affected

(1)Nothing in this part limits or otherwise affects any other law that prohibits or restricts, or authorises a court or tribunal to prohibit or restrict, the publication of identifying matter in relation to a complainant or identifying matter in relation to a defendant.

(2)In this section—

identifying matter, in relation to a defendant, see section 103ZZV.

70   Insertion of new ss 164–169

Part 9, division 14A, as inserted by this Act—
insert—

164   Application of pt 6C, divs 1, 2, 4 and 5 in relation to complainants

Part 6C, divisions 1, 2, 4 and 5 applies in relation to a complainant whether the sexual offence committed, or alleged to have been committed, against the complainant occurred before or after the commencement.

165   Application of pt 6C, divs 1, 3 and 5 in relation to defendants

Part 6C, divisions 1, 3 and 5 applies in relation to a defendant charged with an offence whether the defendant was charged before or after the commencement.

166   Reference to sexual assault

The reference in section 103ZZV, definition prescribed sexual offence, paragraph (d) to a sexual assault against the Criminal Code, section 352 is, in relation to an offence that was committed before the commencement of the Criminal Law Amendment Act 2000, section 39, a reference to an offence against the Criminal Code, section 337 as in force at any time before the commencement of the Criminal Law Amendment Act 2000, section 39.

167   Applications for non-publication orders made before commencement

(1)This section applies to an application for a non-publication order made but not decided under the repealed Criminal Law (Sexual Offences) Act 1978, former section 7(2) before the commencement.

(2)The application is taken to be an application under section 103ZZW.

(3)A notification given under the repealed Criminal Law (Sexual Offences) Act 1978, former section 7A in relation to the application is taken to be a notification given in relation to the application under section 103ZZX.

168   Continued operation of non-publication orders and interim orders

On the commencement—

(a)a non-publication order made under the repealed Criminal Law (Sexual Offences) Act 1978, former section 7 and still in force is taken to be a non-publication order made under section 103ZZW; and

(b)an interim order made under the repealed Criminal Law (Sexual Offences) Act 1978, former section 7D and still in force is taken to be an interim order made under section 103ZZZA.

169   Application of repealed Criminal Law (Sexual Offences) Act 1978

(1)Subsection (2) applies in relation to an offence against the repealed Criminal Law (Sexual Offences) Act 1978, former section 6 or former section 7F committed by a person before the commencement.

(2)Without limiting the Acts Interpretation Act 1954, section 20, a proceeding for the offence may be continued or started, and the person may be convicted of and punished for the offence, as if the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, section 103 had not commenced.

(3)Subsection (2) applies despite the Criminal Code, section 11.

71   Amendment of sch 3 (Dictionary)

(1)Schedule 3, definition complainant—
omit.

(2)Schedule 3—
insert—

accredited media entity, for part 6C, see section 103ZZL.

capacity, for part 6C, division 2, see section 103ZZM.

complainant—

(a)for part 6A, see section 103A; or

(b)for part 6C, see section 103ZZL.

complainant privacy order, for part 6C, division 4, see section 103ZZZG.

consent, for part 6C, division 2, see section 103ZZM.

eligible person, in relation to a charge of a prescribed sexual offence, for part 6C, division 3, see section 103ZZV.

identifying matter—

(a)in relation to a complainant, for part 6C, see section 103ZZL; or

(b)in relation to a defendant, for part 6C, division 3, see section 103ZZV.

interim complainant privacy order, for part 6C, division 4, see section 103ZZZD.

interim order, for part 6C, division 3, see section 103ZZZA(1).

non-publication order, for part 6C, division 3, see section 103ZZW(2).

prescribed sexual offence, for part 6C, division 3, see section 103ZZV.

publish, for part 6C, see section 103ZZL.

sentenced, for part 6C, division 3, see section 103ZZV.

Supreme Court’s media accreditation policy, for part 6C, see section 103ZZL.

vexatious, for part 6C, division 4, see section 103ZZZD.

Division 7 Release of transcript for research purposes

72   Insertion of new s 134AA

After section 134A—
insert—

134AA    Access to transcripts of sexual offence proceedings for research

(1)For the purpose of allowing a person to carry out research, the chief executive may authorise the person to have access to a transcript of a criminal proceeding that relates wholly or partly to a charge of a sexual offence if—

(a)the chief executive is satisfied—

(i)the research has been approved by—

(A)if the research relates to Aboriginal or Torres Strait Islander peoples—the Australian Institute of Aboriginal and Torres Strait Islander Studies; or

(B)otherwise—a human research ethics committee; and

(ii)the transcript is reasonably necessary for the research; and

(b)the transcript will not be published in a way that could reasonably be expected to result in the identification of any of the persons to whom the transcript relates; and

(c)the person gives a written undertaking to preserve the confidentiality of the transcript and the anonymity of the persons to whom the transcript relates.

(2)The chief executive may contact, or authorise the person to contact, the defendant or complainant in the criminal proceeding to ask if they would like to participate in the research being carried out by the person.

(3)The chief executive may authorise the person to use or disclose the transcript, or give access to the transcript, to someone else.

(4)The chief executive may impose any other conditions on the authorisation the chief executive considers appropriate.

(5)The person must comply with any condition imposed by the chief executive unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

73   Insertion of new s 170

Part 9, division 14A, as inserted by this Act—
insert—

170   Section 134AA applies to proceedings started after commencement

Section 134AA applies to a transcript of a criminal proceeding only if the proceeding started after the commencement.

Division 8 Criminal offence of coercive control

74   Amendment of s 21AC (Definitions for div 4A)

Section 21AC, definition offence involving violence, after second dot point—
insert—

•a provision of chapter 29A

Division 9 Other amendments

75   Amendment of s 39PB (Expert witnesses to give evidence by audio visual link or audio link)

(1)Section 39PB, ‘or audio link’—
omit.

(2)Section 39PB(4)(b), ‘audio link or’—
omit.

(3)Section 39PB(4)(c), ‘audio or’—
omit.

76   Amendment of s 39PC (Direction to jury if expert witness gives evidence by audio visual link or audio link)

Section 39PC(1)(b), ‘or audio link under section 39PB’—
omit, insert—

under section 39PB or by audio link

Part 7    Amendment of Evidence Regulation 2017

77   Regulation amended

This part amends the Evidence Regulation 2017.

78   Insertion of new s 4B

After section 4A—
insert—

4B   Prescribed places for relevant proceedings—Act, s 103ZZD

(1)This section prescribes the places for section 103ZZD(1)(c) of the Act.

(2)For the Supreme Court and the District Court the places are—

(a)Brisbane; and

(b)Townsville.

Part 8    Amendment of Justices Act 1886

79   Act amended

This part amends the Justices Act 1886.

80   Amendment of s 47 (What is sufficient description of offence)

Section 47(9), ‘also a domestic violence offence.’—
omit, insert—

also—

(a)a domestic violence offence; or

(b)a domestic violence offence committed against a child; or

(c)a domestic violence offence that exposed a child to domestic violence.

81   Amendment of s 48 (Amendment of complaint)

Section 48(2)—
omit, insert—

(2)Subsection (3) applies if the justices consider the offence charged in the complaint is also 1 of the following offences (each a relevant domestic violence offence) but the complaint does not include a statement to that effect—

(a)a domestic violence offence;

(b)a domestic violence offence committed against a child;

(c)a domestic violence offence that exposed a child to domestic violence.

(3)Without limiting subsection (1), the court may order that the complaint be amended to state the offence is also a relevant domestic violence offence.

Part 9    Amendment of Penalties and Sentences Act 1992

Division 1 Preliminary

82   Act amended

This part amends the Penalties and Sentences Act 1992.

Division 2 Sentencing considerations

83   Amendment of s 9 (Sentencing guidelines)

(1)Section 9(2)—
insert—

(fa)the hardship that any sentence imposed would have on the offender, having regard to the offender’s characteristics, including age, disability, gender identity, parental status, race, religion, sex, sex characteristics and sexuality; and

(fb)regardless of whether there are exceptional circumstances, the probable effect that any sentence imposed would have on—

(i)a person with whom the offender is in a family relationship and for whom the offender is the primary caregiver; and

(ii)a person with whom the offender is in an informal care relationship; and

(iii)if the offender is pregnant—the child of the pregnancy; and

(2)Section 9(2)(gb)—
insert—

(iii)the offender’s history of being abused or victimised; and

(3)Section 9(2)—
insert—

(oa)if the offender is an Aboriginal or Torres Strait Islander person—any cultural considerations, including the effect of systemic disadvantage and intergenerational trauma on the offender; and

(4)Section 9(2)(p)(ii), after ‘considerations’—
insert—

, including the effect of systemic disadvantage and intergenerational trauma on the offender

(5)Section 9(12)—
insert—

family relationship has the meaning given by the Domestic and Family Violence Protection Act 2012, section 19.

informal care relationship has the meaning given by the Domestic and Family Violence Protection Act 2012, section 20.

84   Insertion of new pt 14, div 23

Part 14—
insert—

Division 23 Transitional provisions for Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024

259   Sentencing guidelines

Section 9, as amended by the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, applies to the sentencing of an offender after the commencement whether the conviction happened before or after the commencement.

Division 3 New aggravating factors and domestic violence averments

85   Amendment of s 4 (Definitions)

Section 4—
insert—

exposed, for a child in relation to domestic violence, see the Domestic and Family Violence Protection Act 2012, section 10.

86   Amendment of s 9 (Sentencing guidelines)

Section 9—
insert—

(10C)In determining the appropriate sentence for an offender convicted of a domestic violence offence that was committed against a child when the offender was an adult, the court must treat the fact that it is an offence against a child as an aggravating factor.

(10D)In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that either of the following circumstances apply as an aggravating factor—

(a)during the commission of the offence a child was exposed to domestic violence;

(b)the offence committed was also—

(i)a contravention of any of the following under the Domestic and Family Violence Protection Act 2012—

(A)a domestic violence order;

(B)a police protection notice;

(C)release conditions;

(D)an interstate order;

(E)a New Zealand order; or

(ii)a contravention of another order of a court or of an injunction.

87   Amendment of s 12A (Convictions for offences relating to domestic violence)

(1)Section 12A(1)(a)—
omit, insert—

(a)a complaint or an indictment for a charge for an offence states the offence is also 1 of the following offences (each a relevant domestic violence offence)—

(i)a domestic violence offence;

(ii)a domestic violence offence committed against a child;

(iii)a domestic violence offence that exposed a child to domestic violence; and

(2)Section 12A(2), (3), (4), (5), (8), (10) and (11), before ‘domestic violence offence’—
insert—

relevant

(3)Section 12A(2)—
insert—

Example—

An indictment for a charge for an offence states the offence is also a domestic violence offence committed against a child. The offender is convicted of the offence. If a conviction is recorded in relation to the offence, it must also be recorded as a conviction for ‘a domestic violence offence committed against a child’.

(4)Section 12A(9)—
omit, insert—

(9)Each of the following persons is not compellable as a witness in proceedings before the court to decide the application—

(a)a person against whom the relevant domestic violence offence was committed;

(b)for a relevant domestic violence offence that exposed a child to domestic violence—the child.

88   Insertion of new s 260

Part 14, division 23, as inserted by this Act—
insert—

260   Convictions for offences relating to domestic violence

Section 12A, as amended by the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, applies only in relation to convictions for relevant domestic violence offences committed from the commencement.

Division 4 Criminal offence of coercive control

89   Amendment of sch 1 (Serious violent offences)

Schedule 1, entry for Criminal Code—
insert—

32Asection 334C (Coercive control)

Part 10    Amendment of Recording of Evidence Regulation 2018

90   Regulation amended

This part amends the Recording of Evidence Regulation 2018.

91   Insertion of new s 11AA

After section 11—
insert—

11AA    Researcher in relation to sexual offence proceedings

(1)This section applies to a person who is authorised under the Evidence Act 1977, section 134AA to access a copy of a transcription of a record under the Recording of Evidence Act 1962 of a criminal proceeding that relates wholly or partly to a charge of a sexual offence.

(2)The person may apply to the chief executive for the waiver of all or part of an amount that would otherwise be payable for a copy of the transcription.

(3)The chief executive may waive payment by the person of all or part of the amount.

(4)The person is entitled to the copy for free, or on payment of the relevant amount, as decided under subsection (3).

Part 11    Amendment of Security Providers Act 1993

92   Act amended

This part amends the Security Providers Act 1993.

93   Amendment of sch 1 (Disqualifying offence provisions under the Criminal Code)

(1)Schedule 1, part 1—
insert—

8Achapter 29A (Coercive control)

(2)Schedule 1, part 1, items 8A to 23—
renumber as schedule 1, part 1, items 9 to 24.

94   Amendment of sch 2 (Dictionary)

Schedule 2, definition disqualifying offence, paragraph (a)—
insert—

(vii)against the Domestic and Family Violence Protection Act 2012, section 179A; and

Part 12    Amendment of Youth Justice Act 1992

Division 1 Preliminary

95   Act amended

This part amends the Youth Justice Act 1992.

Division 2 Bail considerations

96   Amendment of s 48AA (Matters to be considered in making particular decisions about release and bail)

Section 48AA(4)(b)—
insert—

(x)the likely effect that refusal to release the child would have on—

(A)a person with whom the child is in a family relationship and for whom the child is the primary caregiver; or

(B)a person with whom the child is in an informal care relationship; or

(C)if the child is pregnant—the child of the pregnancy.

97   Amendment of s 52A (Other conditions of release on bail)

Section 52A(2)—
insert—

(d)the condition does not unduly restrict the child’s ability to carry out the child’s responsibilities for—

(i)a person with whom the child is in a family relationship and for whom the child is the primary caregiver; or

(ii)a person with whom the child is in an informal care relationship; or

(iii)if the child is pregnant—the child of the pregnancy.

Examples of responsibilities—

•transporting a child of the child to an appointment, childcare or school

•attending a medical appointment in relation to a pregnancy

•cultural obligations to a family member

98   Insertion of new pt 11, div 23

Part 11—
insert—

Division 23 Transitional provisions for Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024

419   Application of ss 48AA and 52A to release of a child

(1)Sections 48AA and 52A, as amended by the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, apply in relation to the release of a child on or after the commencement.

(2)For subsection (1), it is irrelevant whether the offence in relation to which the decision is made happened, or the proceeding for the offence was started, before or after the commencement.

99   Amendment of sch 4 (Dictionary)

Schedule 4—
insert—

family relationship has the meaning given by the Domestic and Family Violence Protection Act 2012, section 19.

informal care relationship has the meaning given by the Domestic and Family Violence Protection Act 2012, section 20.

Division 3 Sentencing considerations

100   Amendment of s 150 (Sentencing principles)

(1)Section 150(1)—
insert—

(ea)the hardship that any sentence imposed would have on the child, having regard to the child’s characteristics, including disability, gender identity, parental status, race, religion, sex, sex characteristics and sexuality; and

(eb)regardless of whether there are exceptional circumstances, the probable effect that any sentence imposed would have on—

(i)a person with whom the child is in a family relationship and for whom the child is the primary caregiver; and

(ii)a person with whom the child is in an informal care relationship; and

(iii)if the child is pregnant—the child of the pregnancy; and

(2)Section 150(1)(ga)—
insert—

(iii)the child’s history of being abused or victimised; and

(3)Section 150(1)—
insert—

(ha)if the child is an Aboriginal or Torres Strait Islander person—any cultural considerations, including the effect of systemic disadvantage and intergenerational trauma on the child; and

(4)Section 150(1)(i)(ii), after ‘considerations’—
insert—

, including the effect of systemic disadvantage and intergenerational trauma on the child

101   Insertion of new s 420

Part 11, division 23, as inserted by this Act—
insert—

420   Sentencing principles

Section 150, as amended by the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024, applies to the sentencing of a child after the commencement whether the conviction happened before or after the commencement.

Part 13    Other amendments

102   Legislation amended

Schedule 1 amends the legislation it mentions.

Part 14    Repeal

103   Act repealed

The Criminal Law (Sexual Offences) Act 1978, No. 28 is repealed.

Schedule 1 Other amendments

section

Division 1 Intervention orders

Domestic and Family Violence Protection Act 2012

1   Section 72(2)(a) to (d)—

omit, insert—

(a)the respondent’s character and personal history;

(b)the respondent’s language skills;

(c)the respondent’s cultural background, including whether the respondent identifies as an Aboriginal or Torres Strait Islander person;

(d)any disabilities, psychiatric or psychological conditions of the respondent;

(e)any alcohol or drug problems of the respondent;

(f)the effect of the matters mentioned in paragraph (a) to (e) on the respondent’s ability to participate in an approved intervention program or counselling;

(g)whether there is an approved intervention program or counselling that is available and suitable, including culturally appropriate, for the respondent;

(h)whether and, if so, how the respondent’s participation in the approved intervention program or counselling could affect the safety, protection or wellbeing of the aggrieved or a named person in the domestic violence order or of someone else;

(i)any other relevant matters.

2   Section 75(4)(b)—

omit, insert—

(b)give a copy of the list to—

(i)the Chief Magistrate; and

(ii)the police commissioner.

Division 2 Criminal offence of engaging in domestic violence or associated domestic violence to aid respondent

Police Powers and Responsibilities Act 2000

1   Section 365(1)(j), ‘or 179’—

omit, insert—

, 179 or 179A

Division 3 Criminal offence of coercive control

Working with Children (Risk Management and Screening) Act 2000

1   Schedule 2, entry for Criminal Code—

insert—

334C Coercive control

2   Schedule 4, entry for Criminal Code—

insert—

334C	Coercive control	if the offence was committed against a child
if the offence exposed a child to domestic violence

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