Tuesday, 18 March 2025
Bills
Family Violence Protection Amendment Bill 2025
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Bills
Family Violence Protection Amendment Bill 2025
Introduction and first reading
The PRESIDENT (13:53): I have a message from the Legislative Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Family Violence Protection Act 2008 in relation to service of certain orders and for other purposes.’
That the bill be now read a first time.
Motion agreed to.
Read first time.
Enver ERDOGAN: I move:
That the bill be treated as an urgent bill.
Motion agreed to.
Statement of compatibility
Enver ERDOGAN (Northern Metropolitan – Minister for Casino, Gaming and Liquor Regulation, Minister for Corrections, Minister for Youth Justice) (13:54): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this Statement of Compatibility with respect to the Family Violence Protection Amendment Bill 2025 (the Bill).
In my opinion, the Family Violence Protection Amendment Bill 2025, as introduced to the Legislative Council, is compatible with human rights as set out on the Charter. While it may constitute a significant limit on rights, it serves a pressing and substantial objective to remedy an important issue where no less restrictive means exist. I recognise that the Bill may, in particular cases, have a significant impact on fundamental rights, and as such, I acknowledge a potential for the Bill to operate in a way that may be incompatible with the Charter. However, it is not possible to frame the amendments in a way that specifically addresses those particular cases. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The purpose of the Bill is to amend the Family Violence Protection Act 2008 to overcome defects in certain copies of family violence intervention orders that were served, or purportedly served, on or after 15 November 2024.
Family violence intervention orders
A Family Violence Intervention Order (FVIO) is a court order that aims to protect a person and, where relevant, their children and their property from someone (the respondent to the FVIO) who has used family violence against that person, or their children or property. An FVIO will include conditions that a respondent must follow, including conduct that the respondent must not engage in. Failure to follow the conditions contained in the FVIO may amount to a breach of the FVIO, which is a criminal offence. A recognised DVO is an FVIO made in another Australian jurisdiction or overseas which is recognised in Victoria under the National Domestic Violence Order Scheme Act 2016. The Family Violence Protection Act authorises the court to vary or extend a recognised DVO, as if that DVO were an FVIO made in Victoria. References in this statement to FVIOs should be taken to include a reference to an order varying or extending an FVIO, or an order varying or extending a recognised DVO.
If a respondent is present in court when the FVIO is made, the order and its conditions will be explained to them at that time, and (unless the respondent is a child) it is not a requirement that they are formally served with a copy of the order. However, if the respondent is not present in court when the FVIO is made, or if they are a child, they must be formally served with a copy of the order and provided with an explanation which confirms its conditions.
Defects in certain copies of relevant orders
In March of this year, it was identified that words contained in FVIOs when they were made in court were omitted in copies of the orders when the copies were printed and formally served. The phrase missing was ‘the Court orders that the respondent must not’, which should have been printed before the list of conduct that the respondent must not engage in. While the preceding phrase was omitted from the printed copy of the order, the description of the conduct prohibited was not affected by the error and still appeared on the copy of the order.
While rectified on 5 March 2025, it was established that this computer system error had been operating since November 2024, and a significant number of FVIOs printed in that period had been affected by the error, with the effect that they were not true copies of the order as made. This may result in a defect in service.
The Bill’s effect
In light of this, clause 3 of the Bill inserts into the Family Violence Protection Act 2008 new section 235, which provides that a copy of any of the orders specified in new section 235(1) that were made on and after 15 November 2024 and before the commencement of the legislation, affected by the error and served on a respondent is taken to be, and to always have been, a true copy of that order as made by the Magistrates’ Court or the Children’s Court. It also provides in new section 235(2)(b) that any certificate of service completed in respect of that service or purported service
The orders specified in new section 235(1), made by the Magistrates’ Court or the Children’s Court, are:
(a) a family violence intervention order;
(b) an order varying a family violence intervention order;
(c) an order extending a family violence intervention order;
(d) an order varying or extending a recognised DVO.
The objective is to ensure that a mere defect in a copy of an order does not prevent enforcement action being taken against a person who breaches the conditions of an FVIO.
Human rights issues
The human rights protected by the Charter that are relevant to the Bill are:
• the right to protection from retrospective criminal laws (section 27);
• the fair hearing right (section 24(1)); and
• the right to recognition and equality before the law (section 8).
Retrospective criminal laws
Section 27(1) of the Charter provides that a person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in.
The Bill engages this right because, on a broad construction of the right, the Bill’s effect could be interpreted as criminalising conduct that was not criminal, and not otherwise an offence of which the respondent could be aware when they engaged in it. As outlined above, it is a criminal offence to engage in conduct that is a breach of a condition of the FVIO, even if that conduct would not be a criminal offence in the absence of an FVIO. For example, the conditions of an FVIO may provide that the respondent must not communicate with the protected person or go within a certain distance of where the protected person lives, where that conduct that would not otherwise be a criminal offence.
For respondents who were not present in court when the FVIO was made, the offence of breach of the FVIO will apply where two conditions are satisfied: they have been served with a copy of the order and they have contravened the order. When these respondents, who were not present in court when the FVIO was made, or who were children, were served a copy of an order containing the misprint, there is an argument that, despite the explanation provided to them at time of service, some respondents may not have been aware that breach of the conditions of the order would constitute a criminal offence, and so unknowingly engaged in conduct in breach of those conditions, and were not otherwise afforded notice in order to regulate their conduct to comply with an FVIO. As a result of the retrospective validation of the copy of the order as a true copy, to satisfy the service condition of the breach offence and enable the respondent to be prosecuted for the breach, the Bill’s effect would be to limit the right under section 27(1) of the Charter. I will now discuss the justification for this limit in accordance with the factors in s 7(2) of the Charter.
The nature of the right
Section 27(1) reflects the principle recognised in criminal law that there can be no crime and no punishment, other than as established by the law. It is a fundamental aspect of the rule of law and of the utmost importance. It has been interpreted as safeguarding two guiding principles: that no one should be punished under a law unless it is sufficiently clear and certain to enable the person to know what conduct is forbidden before they do it; and that no one should be punished for any act which was not clearly and ascertainably punishable when the act was done.
The nature and extent of the limitation
The extent of the limitation is best described as variable, with the potential to be significant in particular cases.
In my view, the impact on the majority of affected respondents will not be material. The true meaning of the order, and the purpose of the list of conditions, is still readily realisable from the text and surrounding context of the order. The copy of the order was accompanied by written explanations that made clear that the orders contained conditions which the respondent had to obey, and that these conditions imposed requirements that (for example) the respondent must not behave in certain ways, be around certain people or go to certain places. The explanatory material urges respondents to seek advice if they do not understand the order. Victoria Police officers effecting service were required under Victoria Police procedure to explain the conditions of an order to a respondent, which was routinely recorded on camera. As a practical matter, these requirements ameliorate the impact of any lack of actual notice of the terms of an FVIO received by a respondent as a result of being served with a copy of an order affected by the above defects.
I consider the majority of respondents would have inferred the missing wording from the surrounding context and the accompanying explanations. Respondents to such orders would have understood that they were prohibited from engaging in the conduct comprising the conditions listed in those orders. I consider that respondents to FVIOs were in substance notified and advised of their obligations under the FVIOs.
However, I acknowledge that the effect of the Bill may be particularly acute in some circumstances, such as where, as a result of the printing issue and their personal circumstances, a person did not understand the prohibition that applied to them, and proceeded to breach those conditions. The operation of this Bill will mean that such persons are exposed to potential conviction for an indictable offence, which is a significant limitation on a human right.
The importance of the purpose of the limitation
While the Bill’s potential to limit human rights may be significant, it does so in pursuit of a pressing and substantial objective of public importance, being the protection of survivors of family violence. It is essential to the safety of survivors and the integrity of the scheme that the legal efficacy of orders are upheld. The enforceability of conditions are essential to ensure perpetrators of family violence can be prosecuted for conduct that a court has determined is necessary or desirable to prohibit to ensure safety, and that such prohibited conduct is continued to be deterred and denounced.
If service of copies of FVIOs affected by the defects outlined above is found to be defective, and therefore a defence to a respondent’s breach of an order, it would have the effect of permitting perpetrators of family violence to avoid enforcement and undermine the protective function of the scheme. This would have a particularly devastating effect on victims, particularly where it occurs as a result of a defect in documentation.
FVIOs are key in enforcing the scheme established by the Family Violence Protection Act 2008. They serve the purposes of criminal law and sentencing, including deterrence, protection of the community and, in particular, a vulnerable cohort of people, and also punishment of respondents and rehabilitation of harmful behaviours. Accordingly, FVIOs promote the following rights under the Charter, held by those protected by the FVIOs:
• the right to life (section 9);
• the protection of families and children (section 17);
• property rights (section 20); and
• the right to liberty and security of person (section 21).
The relationship between the limitation and its purpose
In assessing the relationship between the limitation and its purpose, it is relevant that the Bill has been designed to have a limited operation. It is not intended to limit the discretion of a court to stay a criminal proceeding in the interests of justice, or to direct how a court decides cases or otherwise exercises its jurisdiction. Rather, it validates the service of a copy of the FVIO so that the breach offence will continue to apply and the validity of a prior court order is given effect to.
Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve
There is no other option available to protect survivors of family violence and ensure that, despite the misprint, a person who uses family violence in breach of an FVIO can be prosecuted for that breach and held accountable for that behaviour. Accordingly, I do not consider that there is any less restrictive means available to achieve the Bill’s purpose.
I therefore consider that any limitation on the right under section 27(1) can be justified pursuant to the factors in section 7(2) of the Charter and conclude that, overall, the Bill is compatible with the rights set out in the Charter. I acknowledge the Bill has the potential to impact certain individual circumstances in a significant way which may be incompatible with the Charter, however the important and pressing objective warrants proceeding with the Bill, and it is not possible to address those individual circumstances while giving effect to that objective.
Fair hearing right
The Bill is intended to have the practical effect of assisting the prosecution to prove the service element of breach offences, while limiting the ability of the accused to defend the charges by contesting the validity of service. This may also limit the right to a fair hearing under section 24(1) of the Charter, by limiting the respondent’s right to respond to the prosecution’s case.
Reasonable limits on particular aspects of the right to a fair trial can be justified if the hearing as a whole remains fair. I consider that the Bill would not affect the overall fairness of the process for prosecuting that offence. To the extent that the Bill does have this effect, I consider that any limitation would be justified in accordance with my analysis above.
Equality
Finally, the Bill engages section 8 of the Charter, which provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination. Respondents who have limited comprehension skills may have been less likely to have properly understood the conditions that applied to them as a consequence of the defect in the copy of the order and having a protected attribute (for example, race or disability). To the extent that the Bill has the effect that persons with a protected attribute are disadvantaged, this may result in indirect discrimination. Again, as above, the effect on rights will vary in the circumstances, and for the reasons outlined above, however, I consider that any limitation is compatible on the basis of the importance of the objective and that alternative less restrictive means are unavailable, noting there may be specific cases where a limit may be unreasonable in the circumstances to be incompatible with the right.
Hon Enver Erdogan MP
Minister for Casino, Gaming and Liquor Regulation
Minister for Corrections
Minister for Youth Justice
Second reading
That the bill be now read a second time.
Ordered that second-reading speech be incorporated into Hansard:
The Bill before the House proposes to make urgent amendments into the Family Violence Protection Act 2008 (the Act) to address a technical issue with the service of copies of some family violence intervention orders. The Bill deems copies of family violence intervention orders made between 15 November 2024 and the commencement of the Bill that are served on respondents to be true copies of the original orders of the Court.
For a person to be convicted of contravening a family violence intervention order, the Act provides that the Court must make the order and arrange for the respondent to be personally notified of the order and its conditions, unless an order for alternative or substituted service is made. The respondent can be notified of the making and conditions of the order either by having the order explained to them in Court, or, if they are not present in court when it is made, or are a child, by being served with a copy of the order. If the respondent then contravenes a condition of the order, they have committed a criminal offence.
The Magistrates’ Court of Victoria and Children’s Court of Victoria identified that, from 15 November 2024 to 5 March 2025, copies of some family violence intervention orders generated by the Court for service contained a defect. The defect did not impact the validity of any Court orders, however, there may have been an issue with the service of some copies of orders made between 15 November 2024 and 5 March 2025. The technical issue which resulted in a defect in the copies of some orders was resolved on 5 March 2025. The Bill will ensure that any copies of orders made during that timeframe and served on respondents at any time are taken to have always been true copies of the orders made.
I commend the Bill to the house.
Evan MULHOLLAND (Northern Metropolitan) (13:54): I rise to speak on the Family Violence Protection Amendment Bill 2025 on behalf of the opposition. From what we understand, due to a printing error at Court Services Victoria the government is introducing the Family Violence Protection Amendment Bill. The printing error impacts copies of family violence intervention orders made in the Magistrate’s Court and Children’s Court between 15 November 2024 and 5 March 2025 for service on respondents, which meant that printed copies of the orders did not include the complete wording of the court orders. The orders made during this period are believed to be valid, and the government is acting out of an abundance of caution, but I would stress that it is highly distressing for many women in this situation – many people in this situation – that those orders might not be valid, and so it is definitely not something we will get in the way of.
I will note it has occurred within Court Services Victoria, but I will also note that this Labor government has cut $19.1 million from the Court Services Victoria budget this year, so you have got to ask: how much have Labor’s cuts, because they cannot manage money, contributed to errors like this one that has put 11,500 family violence intervention orders in jeopardy?
Katherine COPSEY (Southern Metropolitan) (13:56): I rise to speak on the Family Violence Protection Amendment Bill 2025. The Greens will be supporting this bill today, and I would like to thank the Attorney for her time last night to brief us on the urgent background as to why this bill is necessary. I think that stands in stark contrast to the rushed approach that the government is taking in relation to its bail laws, but in relation to this law it is important for the Parliament to act quickly today to pass this bill.
As has been outlined so far and no doubt will be covered in contributions, this bill addresses an issue that has arisen at Court Services Victoria that has jeopardised the correct service of family violence intervention orders. The Greens have long been on the record as voting for measures that support victim-survivors of family violence, and the bill before us today ensures that family violence intervention orders, including an order to vary or extend a recognised domestic violence order, are valid and enforceable, by deeming a number that contain a typographical error to be a true copy of an order that was made in the Magistrate’s Court for the purposes of service.
From the Attorney’s briefing we understand that an IT upgrade on or before 15 November 2024 resulted in printed copies of these orders having missing words and therefore being incomplete and not true copies of the order. I note that the Attorney has undertaken that she will be investigating what happened at Court Services Victoria that allowed this IT snafu to affect family violence intervention orders and why it remained undetected over a number of months. I will be asking some questions in the committee stage, largely to ascertain whether Court Services Victoria was one of the government agencies that have suffered from the government’s public service cuts, with a mandatory reduction of 10 per cent of staff, that were imposed on many departments last year, and whether IT services at Court Services Victoria have been outsourced or privatised or if those are managed in-house. We have decades of evidence that privatising public services quite simply degrades the quality of service, makes it more expensive, or both, so we are interested to understand the circumstances behind this mistake, as no doubt the government is too, and we would urge that those matters also be part of any investigation that is undertaken to try and prevent this sort of occurrence from happening in the future.
That said, we thank the Attorney again for the time to brief us. It is good that this mistake has been realised, and for the 11,500 orders it is a matter of urgency that the Parliament deal with those. The Greens consider that in these circumstances the solution proposed by the government is a sensible one, and we will be supporting the bill today.
David LIMBRICK (South-Eastern Metropolitan) (13:59): I also would like to say a few words on the Family Violence Protection Amendment Bill 2025, on behalf of the Libertarian Party. I will start by saying that the Libertarian Party will not be opposing this bill. It is highly irregular to get two urgent bills in one day. However, I do accept that under certain circumstances these emergency procedures are valid and there are situations that require Parliament to act very quickly. I accept the government’s arguments that this is one of those cases.
Essentially, this bill is correcting a clerical error that happened with family violence intervention orders that technically were not served correctly because there were words missing on a printed copy. This is to ensure that there is no uncertainty as to the validity of those orders and also to not waste public funds on challenges. We do not know the outcome of those challenges, but likely they would fail anyway and just waste resources.
On that note, we will not be opposing this bill. I think that it is a good example of when we need to use these emergency procedures in Parliament, unlike others I have seen in the past and may also be experiencing today. We will not be opposing this, as I think it is very important that everyone is given certainty as to the validity of these orders that have come up during this short period of time.
Enver ERDOGAN (Northern Metropolitan – Minister for Casino, Gaming and Liquor Regulation, Minister for Corrections, Minister for Youth Justice) (14:01): I want to take this opportunity to thank the house for enabling this bill to be considered so urgently, and all colleagues and in particular the three members Ms Copsey, Mr Mulholland and Mr Limbrick for their thoughtful consideration of the matters and also for their support for the urgent bill before us.
Community safety is the government’s number one priority because all Victorians deserve to feel safe, whether at school, at home, at work, out shopping or going about their daily lives. In Victoria victim-survivors of family violence deserve to be heard, respected and protected by the legal system. They are brave, and when they report abuse they rightly expect the system to protect them, which is why the government has acted as a matter of urgency to introduce the Family Violence Protection Amendment Bill 2025 to Parliament in response to a technical printing error by Court Services Victoria that impacts copies of family violence intervention orders made in the Magistrates’ Court and Children’s Court between 15 November 2024 and 5 March 2025. Let me be very clear that orders made during this period are valid, and I have had confirmation from the Department of Justice and Community Safety and Victoria Police that the error has not affected anyone’s safety to date. The Allan Labor government in this instance, as has been outlined by many others, is acting out of an abundance of caution to make sure that respondents continue to comply with those orders and that perpetrators are held to account. The Attorney-General has asked the department to provide advice on how they can ensure this never happens again, and all options are on the table.
Ms Copsey has flagged that we might be entering into the committee stage, and I will have more to say in the committee, but in terms of funding and investments in court services, in particular a new case management system for the Magistrates’ Court and Children’s Court, there was a significant amount invested during the 2023–24 budget: $7.9 million in output funding to complete the implementation of a new case management system, and there was an additional $3.5 million in the state budget for the Magistrates’ Court. In relation to those two questions, I could probably address them now if that assists everyone in the house – because I think Ms Copsey was the only one that flagged the need for a committee stage. I can confirm that there was no mandatory reduction of 10 per cent of staff at Court Services Victoria as part of the 2023–24 financial year. I think that is one of the questions that Ms Copsey flagged with the chamber.
In terms of the additional question, Court Services Victoria’s IT services are an in-house service. They are a public service. It is not subcontracted to external agencies or external companies to manage those court services. This was an error, I understand, and in terms that have been explained to me as well, as part of an upgrade to a glitch in the system. As a government, as I stated earlier, we have continued to invest in new case management systems, understanding that digitalisation and automation across our systems are important, and important for effective delivery of court services. These were not subject to a 10 per cent staff reduction in 2023–24 at Court Services Victoria. I hope that may alleviate the need for a committee stage, Ms Copsey.
Motion agreed to.
Read second time.
Third reading
Enver ERDOGAN (Northern Metropolitan – Minister for Casino, Gaming and Liquor Regulation, Minister for Corrections, Minister for Youth Justice) (14:05): I move, by leave:
That the bill be now read a third time.
Motion agreed to.
Read third time.
The PRESIDENT: Pursuant to standing order 14.28, a message will be sent to the Assembly informing them that the bill has been agreed to by the Council without amendment.