DOMESTIC VIOLENCE AMENDMENT (POLICE ORDERS) BILL 2005 Explanatory Statement

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DOMESTIC VIOLENCE AMENDMENT (POLICE ORDERS) BILL 2005

DOMESTIC VIOLENCE AMENDMENT (POLICE ORDERS) BILL 2005

SERIAL NO. 17

EXPLANATORY STATEMENT

GENERAL OUTLINE

The main purpose of this Bill is to amend the Domestic Violence Act to provide for Police to issue restraining orders in certain circumstances.

The Bill aims to provide Police with an additional power to address domestic violence without the need to contact a Magistrate for urgent out of hours applications under the Domestic Violence Act.

The Bill also contains safeguards for defendants to ensure that they are not disadvantaged by the exercise of the Police power to issue a restraining order.

The Bill also reforms the law relating to out of hours applications to Magistrates and provides for the repeal of the Domestic Violence Amendment Act 2001.

NOTES ON CLAUSES

Clause 1. Short Title.

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Domestic Violence Amendment (Police Orders) Act 2005.
Clause 2. Commencement.

This Act comes into operation on a date fixed by the Administrator by notice in the Gazette.

Clause 3. Principal Act

This clause indicates that the Bill amends the Domestic Violence Act (“the Act”).

Clause 4 Interpretation

This clause inserts a new definition of restraining order into the Act. The new definition will include orders made by a magistrate and the new orders made by Police.

Clause 5 Amendment of section 4 of the Act

The Bill also provides a new process for confirmation of all interim or temporary orders made under the Act. This clause amends section 4(5) to provide for this process to apply to orders made under section 4.

Clause 6 Repeal and substitution of section 6

This clause repeals section 6 of the Act and inserts new sections 6, 6A and 6B into the Act.

Section 6

The new section 6 will continue to provide that an application for an urgent restraining order may be made to a duty Magistrate.

The power for Magistrates to make urgent orders is being retained because there may be circumstances where it is not appropriate for an authorised Police Officer to make a restraining order. For example, it may not be appropriate for Police to make a restraining order against a person of authority in the community. It is not intended that the provision allowing a Magistrate to make an urgent order will be a review process where Police have refused to make an urgent order.

An application can be made by Police to a Magistrate for an urgent restraining order if it is not practicable to make an application to the court under section 4. The provision aims to provide protection where violence occurs outside of normal court hours and a restraining order is required to protect the person subject to violence, or where the violence occurs in a remote location and the parties do not have convenient access to a court in order to make a timely application under section 4 of the Act.

An urgent order can be made by a Magistrate:

· if it is not practicable to obtain an order under section 4; and
· the court might otherwise make an order under section 4(1).

If the Magistrate intends to make an order that excludes the defendant from premises, or limits their access to premises, they must consider the effect of making an order on the accommodation of the persons affected by the order, and the children of or in the care of the persons affected by the order.

The interim order is adjourned to a later date so that the order can be confirmed by a Magistrate. In urban areas such as Darwin, Alice Springs and Katherine it is anticipated that this will occur within two to five working days. In other locations confirmation may not occur for some weeks depending on the location and the date of the next most convenient circuit court.

An order may be made in the absence of the defendant. The order must be served on the defendant before it is operative and the order also acts as a summons to the defendant for the confirmation of the order.

Section 6A

An authorised Police Officer may make an urgent order if:

· it is not practicable to obtain an order under section 4(1). Circumstances where it is not practicable to obtain an order under section 4(1) will include where an incident occurs outside of normal business hours, and a restraining order is required, or where an incident occurs in a remote location and it is not possible for the parties to make a timely application to a court under section 4(1) of the Act; and

· it is necessary to ensure the immediate safety of the person for whose protection the order is being made.

These last two conditions provide some safeguards where Police exercise their discretion to make an order. Given the material difference between the exercise of Police discretion, and the exercise of judicial discretion, it is necessary to provide some additional guidance for how Police should exercise that discretion.

An authorised Police Officer must also be satisfied that a court might reasonably have made an order under section 4(1), and before making an order that restrains a defendant from entering premises, or limits the defendant’s access to premises, must consider the effect of making the order, or refusing to make the order, on the accommodation of the parties and any children of or in the care of the parties.

The Police order is adjourned to a later date for confirmation by a Magistrate. In urban areas such as Darwin, Alice Springs and Katherine it is anticipated that this will occur within two to five working days. In other locations confirmation may not occur for some weeks depending on the location and the date of the next most convenient circuit court.

An order can be made in the absence of the defendant. The order made by an authorised Police Officer must be served on the defendant before it is operative. The order will also act as a summons to the defendant to appear before the court for the confirmation of the order.

The Police must also inform the defendant about their right to have the police order reviewed.

For the purposes of 6A authorised Police officer means a police officer of or above the rank of Senior Sergeant or an officer in charge for the time being of a police station.

Section 6B

The new section 6B will provide for a review of an order made by an authorised Police Officer at the request of a defendant. The Police must then facilitate an application by the defendant to a Magistrate for a review.

The policy underlying this provision is that defendants whose case is not listed for confirmation for a significant period of time should be entitled to a judicial review of the Police order. This will generally apply to a defendant outside of Darwin, Katherine or Alice Springs where confirmation of an order may not occur for some weeks. This is to ensure fairness to a defendant and to maintain the integrity of orders made under the Act.

It is anticipated that the Chief Magistrate will make rules or practice directions regarding the time and manner for making such an application. It is not intended that a defendant will be entitled to an immediate review where an order is made outside of normal court hours. A review within one to three days working days would meet the requirements to accord procedural fairness to a defendant.

At the review the court has the power to vary or revoke, or to refuse to vary or revoke the order. If the court varies an order, or refuses to vary or revoke the order, the parties are served with a copy of the order that includes the time and place for further confirmation of the order by the court.

Clause 7 Amendment of section 7 (Power to remove and detain while order sought)

This clause amends the Act to extend the power that Police have to remove and detain a person while they seek an urgent order from a Magistrate to where Police intend to make an order under the new section 6A.

Clause 8 Amendment of section 8 (Variation or revocation of order)

Extends the application of section 8 of the Act to people on whose behalf an order is made by Police under the new section 6A(2).

Clause 9 Amendment of section 8A (Variation of order by telephone)

This clause omits the provisions in section 8A with respect to confirmation of orders varied by telephone, on the application of a Police Officer, in the absence of a defendant. The Bill provides a new process for confirmation of all orders made under the Act in the absence of the defendant.

Clause 10 Amendment of section 8B (Variation of order
ex parte in special circumstances)

This clause omits the provisions in section 8B with respect to confirmation of orders varied, on the application of one party, without notice to the other party. The Bill provides a new process for confirmation of all orders made under the Act in the absence of the defendant.

Clause 11 New section 8C

This clause provides a new process for confirmation of interim orders.

The process in the new section 8C applies if a defendant is summoned under section 4(5), 6(12), 6A(9), 6B(9), 8A(7) or 8B(8).

A person on whose behalf an order has been made may appear at the confirmation hearing. Where a defendant has been summoned in relation to an order made on the application of a Police Officer under section 6, or an order made by an authorised Police officer under section 6A, a Police Officer or representative of the Police force must appear at the hearing. This last provision is to ensure that the Police have an ongoing role and responsibility with respect to orders initiated by them.

At the confirmation hearing the court may confirm, vary or revoke the order if it is satisfied that the defendant has been served with a copy of the order, and after considering any evidence before it and submissions from the parties.

This aspect of the proceedings is slightly different from the previous procedure in the Act because an order is only effective if the court actually confirms the order, not simply because a defendant fails to appear at the hearing. The new provision is consistent with court practice. However, it is intended that a court may still confirm an order in the absence of a defendant as long as it is satisfied that the defendant has been served.

Clause 12 Amendment of section 10 (breach of order)

The clause amends section 10(1A) of the Act which provides for a mandatory minimum sentence of seven days imprisonment to be made by the court if it finds a person guilty of a second or subsequent offence of breach of restraining order. Section 10(1A) only applies to orders made by Police under the new section 6A if the order has been confirmed by the court under section 8C.
The policy underlying this clause is that it is not appropriate for a mandatory sentence to apply to an offence for breach of an order that is not a judicial order.

Clause 13 Repeal and substitution of section 20AF

Family Law Act orders made with respect to contact with children are relevant to orders made under the Act. Section 68S of the Family Law Act provides that where a contact order made under section 68R is inconsistent with a family violence order (which includes a restraining order under the Act), the contact order prevails. Section 68T of the Family Law Act provides for a Magistrate making a restraining order to vary a contact order. It is therefore necessary for Police and Magistrates to have information about any relevant Family Law Act orders.

This clause requires a person applying for a restraining order, or seeking a variation or revocation of a restraining order, to inform the court about any relevant family law orders. In addition the clause requires Police to make reasonable inquiries regarding the existence of family law orders, and for people to inform Police of any family law orders, where a Police Officer intends to apply for an urgent order or have an urgent order made by an authorised Police Officer.

Clause 14 Repeal

This clause repeals the Domestic Violence Amendment Act 2001. That Act provided, amongst other matters, for Police to make restraining order but has never been commenced. The current Bill will now provide for restraining orders to be made by Police.

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