top of page
Search
  • Writer's pictureGeoff Harrison

Revocation of AVOs


criminal barrister, criminal solicitor, criminal lawyer, best criminal barrister, best criminal solicitor, best criminal lawyer, avo, revocation of avo, revoking avo, avo and firearms licence

Published by Geoff Harrison | 8 June 2024


A Provisional, Interim or Final Apprehended Violence Order (AVO) can be varied or revoked by virtue of ss33, 33A, 73 and 74 of the Crimes (Domestic and Personal Violence) Act 2007. This may be a consideration for persons who held or want a Firearms Licence (given s11(5)(c) of the Firearms Act 1996. However, an extremely important consideration is the fact that a final AVO can only be revoked if the final order is still current or enforceable: see Wass v DPP, Majumdar and Commissioner of NSW Police v Murphy. As noted by Gleeson JA in Majumdar [36]:


On an application for judicial review of the decision of the District Court, Leeming JA (Bell CJ and Kirk JA agreeing) referred to (i) the legislative history of the amendments to Pt 10, Div 5 of the Act by the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 (NSW) (the 2016 Amendments), following a 2015 review entitled Statutory Review of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (2015) at [36]-[39], (ii) the Attorney-General’s speech introducing the 2016 Amendments and the explanatory memorandum accompanying the Bill at [40]-[41], (iii) several textual and contextual considerations at [48]-[58], which support the construction that it was only possible to “revoke” an order while it remained in force, and concluded at [59] adopting a purposive construction of s 73 of the Act:


... I conclude that this is a case where the power to “vary or revoke” an order is to be construed as confined to a power to vary or revoke an unexpired order. That accords with natural meanings of “vary” and “revoke”. It is consistent with the use of “revoked” in s 24 and s 32 in circumstances where the order must necessarily be in force immediately before it is revoked. It avoids the awkwardness of former s 72(5) being otiose or enacted for the avoidance of doubt. It accords with the explicitly enunciated purpose in the statutory review and the extrinsic materials in 2016, and it also accords with the explicitly enunciated purpose of the amendments in 2008.


Other Sources:


Cases:

Extracted Legislation:

CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 33

Variation or revocation of provisional order on application of police officer


(1) A provisional order made by an authorised officer may be varied or revoked by--

(a) the authorised officer who made it or any other authorised officer, or

(b) any court dealing with an application for an apprehended violence order, or variation of an apprehended violence order, against the same defendant.


(2) A provisional order may be varied--

(a) by amending or deleting any prohibitions or restrictions specified in the order, or

(b) by specifying additional prohibitions or restrictions in the order.


(3) An application for a variation or the revocation of a provisional order under this section may be made only by a police officer.


(4) If there is more than one protected person under a provisional order, the order may be varied or revoked in its application to all of the protected persons or in relation to any one or more of the protected persons.


(5) Notice of the variation or revocation is to be served on the defendant, each protected person affected by the variation or revocation and the Commissioner of Police.


(7) This section does not apply to the variation or revocation of a provisional order in accordance with section 33A.


CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 33A

Variation or revocation of provisional order on application of defendant


(1) A provisional order made by a senior police officer may be varied or revoked on the application of the defendant by any court that deals, or is to deal, with an application for an apprehended violence order, or variation of an apprehended violence order, against that defendant.


(2) Despite subsection (1), an application for variation or revocation of a provisional order must be made by a police officer if the protected person or one of the protected persons under the order is a child at the time of the application.


(3) Sections 73(1), (2), (4) and (6), 74(1) and (2), 76(2), (4) and (5) and 77(2)-(8) apply to the variation or revocation of a provisional order under this section in the same way as they apply to the variation or revocation of a final apprehended violence order or interim court order.


(4) In addition to the requirements of section 73(4), a provisional order is not to be varied or revoked on the application of the defendant under this section unless notice of the application has been served on the Police Area Commander or Police District Commander.


(5) The applicant officer or another police officer is entitled to appear in proceedings for a variation or revocation of the provisional order under this section.


CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 73

Variation or revocation of final apprehended violence orders and interim court orders


(1) The court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke a final apprehended violence order or interim court order.


(2) In particular, a final apprehended violence order or interim court order may be varied under this section in any one or more of the following ways--

(a) by extending or reducing the period during which the order is to remain in force,

(b) by amending or deleting any prohibitions or restrictions specified in the order,

(c) by specifying additional prohibitions or restrictions in the order.


(3) The court may decline to hear an application in respect of an order if the court is satisfied that there has been no change in the circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order.


(4) A final apprehended violence order or interim court order is not to be varied or revoked on the application of the defendant unless notice of the application has been served on each protected person to whom the order relates.


(5) A final apprehended violence order or interim court order is not to be varied or revoked on the application of the applicant for the original order or protected person unless notice of the application has been served on the defendant.


(6) Notice of an application must be served personally or in such other manner as the court hearing the application directs.


(7) Despite subsection (5), the court may make an order extending the period during which the final apprehended violence order or interim court order is to remain in force without notice of the relevant application having been served on the defendant, if the applicant lodged the application before the day on which the apprehended violence order or interim court order is due to expire.


(8) If an application for the extension of a final apprehended violence order or interim court order is made before the order expires, the order is taken to continue in force until the application is dealt with by the court.


(9) Unless sooner revoked, an order extended under subsection (7) ceases to have effect 21 days after the order extending it is made or on an earlier date specified in the order extending it. However, further orders may be made from time to time under that subsection before the extended order ceases to have effect.


CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 74

Variation or revocation of final apprehended violence orders and interim court orders where more than one protected person


(1) This section applies to a final apprehended violence order or interim court order if there is more than one protected person under the order.


(2) An order to which this section applies may be varied or revoked in its application to all of the protected persons or in relation to any one or more of the protected persons.


(3) If an application in respect of an order to which this section applies is made by one of the protected persons under the order, none of the other protected persons can be the subject of the variation or revocation unless the court is satisfied that he or she is at least 16 years of age and has consented to the variation or revocation.


CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 75

Variation may be made on guilty plea or guilt finding for certain offences


(1) If a person pleads guilty to, or is found guilty of, a serious offence, the court may vary a final apprehended violence order or an interim court order for the purpose of providing greater protection for the person against whom the offence was committed whether or not an application to vary the order has been made under this Division.


(2) In this section--

"court" includes the District Court.

"serious offence" has the same meaning as in section 40.


CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 98ZA

Revocation of recognised DVO


(1) A DVO ceases to be a recognised DVO if the DVO is revoked in New South Wales or another jurisdiction and that revocation is recognised in New South Wales.


(2) A revocation of a local DVO is recognised in New South Wales if the revocation is done--

(a) in New South Wales by a court or any other person authorised to do so under this Act, or

(b) in another participating jurisdiction by a court under a corresponding law.


(3) A revocation of an interstate DVO or foreign order is recognised in New South Wales if the revocation is done--

(a) in the issuing jurisdiction by a court or any other person authorised to do so under the law of the issuing jurisdiction, or

(b) in any participating jurisdiction by a court under this Part or a corresponding law.


(4) The DVO ceases to be a recognised DVO from the time it is revoked.



4 views0 comments

Recent Posts

See All

Commenti

Valutazione 0 stelle su 5.
Non ci sono ancora valutazioni

Aggiungi una valutazione
bottom of page