Criminal Code Act 1899

This section applies on the hearing before a court of a charge against a person of unlawful stalking, intimidation, harassment or abuse.

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.

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.

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.

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).

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.

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

the day stated by the court in the restraining order; or

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

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.

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

A person who knowingly contravenes a restraining order commits an offence.Maximum penalty—120 penalty units or 3 years imprisonment.

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.

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.

A restraining order proceeding is not a criminal proceeding.

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

In this section—charge means the charge of unlawful stalking, intimidation, harassment or abuse 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). sch 1 pt 5 ch 33A s 359F ins 1999 No. 18 s 3