Northern Territory Second Reading Speeches

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DOMESTIC VIOLENCE AMENDMENT (POLICE ORDERS) BILL 2005

Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a second time.

The purpose of this bill is to amend the Domestic Violence Act to provide for authorised police officers to issue urgent restraining orders in certain circumstances, and to repeal the Domestic Violence Amendment Act 2001. The objectives of the amendments contained in the bill are to give police greater flexibility in their immediate response to incidents of domestic violence, and to decrease the amount of out-of-hours work for magistrates.

Section 6 of the act currently provides for a police officer to make an application outside of normal court hours by telephone to a duty magistrate for a restraining order. This process provides access to the protection of a restraining order overnight and on weekends and public holidays, when it is not possible to file an application for a restraining order at a court registry.

The number of urgent out-of-hours applications being made under section 6 of the Domestic Violence Act has increased significantly. Applications increased from 39 in 1999 to 724 in 2004. In 2005, to the end of March, 199 applications had been made by police under section 6 of the act. This reflects both an increased awareness about legal remedies available for domestic violence, and some recent operational changes made by police with respect to domestic violence.

Northern Territory police introduced a Violence Reduction Strategy in late 2004 that required police to take formal action with respect to incidents of domestic violence. This may involve investigation and charging for criminal offences, or making an application for a restraining order, depending on the circumstances of each case.

Police currently have a broad range of powers in order to intervene in domestic violence incidents to provide protection for victims, and to hold offenders accountable for their behaviour. These include:

· powers of entry where a person is at risk of physical injury or where a contravention of a domestic violence restraining order has occurred or may occur;
· power to arrest without warrant where an offence has been committed;
· power to detain where police intend to make an application under the Domestic Violence Act for an urgent restraining order;
· power to investigate criminal offences and to apprehend a person for the purpose of investigation, and to grant or refuse bail to a person charged with a criminal offence; and
· power to make an application for a restraining order or to seek a variation of a restraining order on behalf of the person in need of protection.

This bill will provide police with an additional power that will complement these existing powers. A number of other Australian jurisdictions have introduced laws that permit police, as well as courts, to issue restraining orders in certain circumstances.

The bill repeals the existing section 6 of the act and replaces it with new provisions for urgent, out-of-hours orders to be made by either a magistrate or authorised police officers. The bill permits a police officer of or above the rank of senior sergeant, or an officer in charge for the time being of a police station, to issue a restraining order if it is necessary to ensure the immediate safety of a person for whose protection the order is being made.

The bill also provides the option for police to make an application to a magistrate by telephone, facsimile or other electronic means for an urgent order where it is not practicable for an application to be made at the court.

In order to provide immediate protection for people at risk of harm from domestic violence, police will be able to either make an application to a magistrate, or have an authorised police officer issue an order.

It is envisaged that, while police will now be able to deal with many incidents of domestic violence that occur outside the normal court hours or in remote areas on an urgent basis without having to make an application to a magistrate, it is still necessary to preserve the option for police to make an application for an urgent order to a magistrate in particularly complex or sensitive matters. However, it is understood that these matters will be in a minor proportion.

If police or a magistrate make an urgent order, it will then be adjourned to a later date for a magistrate to confirm the order. The defendant is summoned to appear at the confirmation hearing when they receive a copy of the urgent order. An urgent order is not binding on a defendant until it has been served on them.

The confirmation hearing before a magistrate gives the parties an opportunity to consider their position, and to advise the court whether any alteration needs to be made to the scope and nature of a restraining order. It is also a mechanism for providing procedural fairness for a defendant, as urgent orders may be made without notice and in the absence of the defendant.

In centres such as Darwin, Katherine and Alice Springs, it is anticipated that urgent orders made by either police or a magistrate will be confirmed by the court within two to five working days. In other remote locations, the return date may be up to four weeks of an urgent order being made. Given that some urgent interim orders issued by police in remote areas will not be listed for confirmation for some weeks, it is necessary to provide a review process for people affected by these types of orders who do not have access to a court other than a circuit court.

When police make an urgent order, they will be obliged to inform the defendant of their right under the act to seek a review of that order from a magistrate. Where a defendant requests a review of a police order, police must facilitate an application by the defendant to a magistrate for a variation or revocation of the order. Such an application may be made by telephone or other form of electronic communication to a magistrate. This process is analogous to the review that is available in the Bail Act, where police have refused to grant bail to a person. Under section 20AB of the Domestic Violence Act, the Chief Magistrate may issue rules or practice directions for the purposes of the act. It is anticipated that the Chief Magistrate may make rules or practice directions relating to the time and manner for making such applications.

It is not intended that an application for a review be immediately available to a defendant, particularly when police issue an order outside of normal court hours, and that a review within one to three working days of the order being made would meet the needs of a defendant in this regard.

The provisions of section 10 of the Domestic Violence Act with respect to a mandatory minimum sentence for a second or subsequent breach of a restraining order will not apply to orders made by police until they are confirmed by a magistrate. It is not appropriate for a mandatory minimum sentence to apply to an order that is administrative rather than judicial in character.

Finally, the bill repeals the Domestic Violence Amendment Act 2001, which provided for police interim restraining orders. That act was never commenced, in part due to concerns about how the provisions in relation to police interim restraining orders would operate in practice.

While the government has introduced this bill to meet the objective of giving police greater flexibility in their response to domestic violence, and alleviating the pressure of out of hours work on magistrates, other aspects of the Domestic Violence Act are being addressed through a general review of the act that is being conducted by the Department of Justice. This review will also provide an opportunity for an assessment of the operation of the provisions introduced by this bill. Madam Speaker I commend the bill to honourable members.

Debate adjourned.

 

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