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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Crimes (Family Violence) (Holding Powers) Act
2005
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. Principal Act 2
4. New Division 2 inserted in Part 2 2
Division 2--Holding Powers 2
8AA. Definitions 2
8AB. Criteria for exercise of powers 3
8AC. Direction power 3
8AD. Detention power 5
8AE. Procedural requirements for person directed to a police
station, or person apprehended and detained 5
8AF. How long do holding powers last? 8
8AG. Extension of period 10
8AH. Telephone or fax application for extension order 10
8AI. Police to notify directed person when direction ceases 12
8AJ. No questioning during holding period 12
8AK. Court may hear directed person or aggrieved family
member 12
5. Consequential amendments 13
6. Entry and search of premises 13
ENDNOTES 14
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551390B.I1-18/10/2005 BILL LA INTRODUCTION 18/10/2005
PARLIAMENT OF VICTORIA
A BILL
to amend the Crimes (Family Violence) Act 1987 to provide police
with holding powers in family violence situations and for other
purposes.
Crimes (Family Violence) (Holding
Powers) Act 2005
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to amend the Crimes
(Family Violence) Act 1987 to provide police
with holding powers in family violence situations.
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Act No.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day to be proclaimed.
(2) If this Act does not come into operation before
1 July 2006, it comes into operation on that day.
5
3. Principal Act
See: In this Act, the Crimes (Family Violence) Act
Act No.
1987 is called the Principal Act.
19/1987.
Reprint No. 5
as at
17 June 2003
and
amending
Act Nos
72/2004,
77/2004,
108/2004 and
18/2005.
LawToday:
www.dms.
dpc.vic.
gov.au
4. New Division 2 inserted in Part 2
After section 8 of the Principal Act insert--
10
'Division 2--Holding Powers
8AA. Definitions
In this Division--
"aggrieved family member" means the
family member whose person or
15
property is the subject of the intended
complaint or complaint;
"complaint" means a complaint under
section 7 or 8;
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Act No.
"directed person" in relation to a direction
under this Division, means the person
to whom the direction is or has been
given (whether or not the person is also
detained under this Division);
5
"directing member" in relation to a
direction under this Division, means the
member of the police force giving, or
who gave, the direction.
8AB. Criteria for exercise of powers
10
A member of the police force may exercise a
power under this Division in respect of a
person only if--
(a) the member has reasonable grounds for
suspecting that the person is of or
15
above the age of 18 years; and
(b) the member believes on reasonable
grounds that exercise of the power is
necessary to ensure the safety of the
aggrieved family member or to
20
preserve any property of the aggrieved
family member.
8AC. Direction power
(1) If a member of the police force intends to
make a complaint in respect of a person, the
25
member may direct the person, orally or in
writing--
(a) to remain at the place where the person
is when the direction is given; or
(b) to go to, and remain at, a place stated
30
by the member; or
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Act No.
(c) to remain in the company of--
(i) the member; or
(ii) another member of the police
force stated by the member; or
(iii) another person (the
5
"accompanying person") stated
by the member.
(2) A direction referred to in sub-section
(1)(c)(iii) may be given only with the
accompanying person's consent.
10
(3) A direction given under this section must be
reasonable in the circumstances.
(4) The directing member must at the time of
giving the direction inform the directed
person, orally or in writing--
15
(a) that the directed person may be
apprehended and detained if the person
refuses or fails to comply with the
direction; and
(b) that, if the directed person is
20
apprehended and detained, it is an
offence to escape or attempt to escape.
(5) A direction cannot be given under this
section in relation to an intended complaint
for an intervention order of a kind referred to
25
in section 21A(5) of the Crimes Act 1958.
Note: Section 21A(5) of the Crimes Act 1958
provides for intervention orders in cases of
stalking.
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8AD. Detention power
(1) If a directed person refuses or fails to comply
with a direction under section 8AC, a
member of the police force may, using such
force as is reasonably necessary, apprehend
5
and detain the directed person.
(2) The directed person may be detained at a
police station or other place, but may be
detained in a police gaol (within the meaning
of the Corrections Act 1986) only if the
10
member considers that it is necessary to do
so for the protection of any person or
property or to prevent the person from
escaping from detention.
15 Note: Section 49E of the Summary Offences Act
1966 makes it an offence to escape or attempt
to escape from a place where a person is being
lawfully detained.
(3) Nothing in section 479C of the Crimes Act
1958 applies to a person who escapes or
20
attempts to escape from detention under this
Division.
8AE. Procedural requirements for person
directed to a police station, or person
apprehended and detained
25
(1) This section applies if--
(a) a person is directed under section 8AC
to remain at, or go to and remain at, a
police station; or
(b) a directed person is apprehended and
30
detained under section 8AD.
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(2) A member of the police force must--
(a) inform the person that the person--
(i) may communicate or attempt to
communicate with a friend or
relative (other than the aggrieved
5
family member) to inform them of
the person's whereabouts; and
(ii) may communicate or attempt to
communicate with a legal
practitioner; and
10
(b) give the person a notice in the
prescribed form and containing the
prescribed information about the
person's rights and responsibilities
under this Division.
15
(3) A member of the police force must comply
with sub-section (2)--
(a) for a person referred to in sub-
section (1)(a)--as soon as
practicable after--
20
(i) the direction is given, if the
person is at a police station
when the direction is given; or
(ii) the person arrives at the police
station in any other case;
25
(b) for a person referred to in sub-
section (1)(b)--as soon as
practicable after the person is
apprehended and detained.
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(4) If the person wishes to communicate with a
friend, relative or legal practitioner, a
member of the police force--
(a) must afford the person reasonable
facilities as soon as practicable to
5
enable the person to do so; and
(b) must allow the person's legal
practitioner or a clerk of the legal
practitioner to communicate with the
person in circumstances in which as far
10
as practicable the communication will
not be overheard.
(5) Nothing in sub-section (4) permits the person
to communicate with the aggrieved family
member.
15
(6) If the person does not have a knowledge of
the English language that is sufficient to
enable the person to understand why he or
she is subject to a direction or detention, a
member of the police force must arrange for
20
the person to have access to a competent
interpreter.
(7) Despite sub-section (2) or (4), a member of
the police force is not required to inform a
person that the person may communicate or
25
attempt to communicate with a friend or
relative, or to afford a person facilities to
enable the person to do so, if the member
believes on reasonable grounds that the
communication would be likely to jeopardise
30
the safety of the aggrieved family member or
any property of the aggrieved family
member.
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8AF. How long do holding powers last?
(1) The maximum period for which a direction
under this Division remains in force or a
directed person may be detained under this
Division is--
5
(a) 6 hours after the direction is given; or
(b) if an extension is granted under
section 8AG--that period as extended.
(2) Despite sub-section (1), a direction under
this Division ceases to be in force and, if a
10
directed person is detained under this
Division, authorisation for the detention
ceases--
(a) if an intervention order or interim
intervention order is made in respect of
15
the directed person--at the time the
order is served on the directed person
(subject to sub-section (3));
(b) if a warrant is issued under section 9 to
arrest the directed person--at the time
20
the directed person is arrested under the
warrant;
(c) if the directing member determines not
to make a complaint, or withdraws a
complaint--at the time of that
25
determination or withdrawal.
(3) If, despite an intervention order or interim
intervention order being served on a directed
person, the directing member believes on
reasonable grounds that it is necessary for
30
the direction (and, if applicable, detention) to
continue to enable further measures to be
taken for the protection of the aggrieved
family member, the direction continues in
force and detention (if applicable) is
35
authorised until those measures have been
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taken or the period referred to in sub-
section (1) expires, whichever occurs first.
Note: Section 8AB also requires the member to
believe on reasonable grounds that the
5 continued direction or detention is necessary to
ensure the safety of the aggrieved family
member of the directed person or to preserve
any property of the aggrieved family member.
(4) If--
(a) an intervention order or interim
10
intervention order is refused in respect
of a directed person; or
(b) a warrant under section 9 to arrest a
directed person is refused--
the direction ceases to be in force (subject to
15
sub-section (5)).
(5) If a warrant under section 9 to arrest a
directed person is refused but the complaint
in respect of the directed person has not yet
been determined or withdrawn, the direction
20
continues in force and detention (if
applicable) is authorised until the direction
ceases to be in force under sub-section (1),
(2), (3) or (4)(a) (as the case may be).
25 Note: Section 8AB also requires the member to
believe on reasonable grounds that the
continued direction or detention is necessary to
ensure the safety of the aggrieved family
member of the directed person or to preserve
30 any property of the aggrieved family member.
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8AG. Extension of period
(1) If a member of the police force considers
that it is necessary for a direction or the
detention of a directed person under this
Division to exceed 6 hours, the member may
5
apply to the court for an order extending the
maximum period of the direction and, if
applicable, detention.
(2) An application for an extension order must
be made within 6 hours after the direction
10
was given to the directed person.
(3) If the court is satisfied that there are
exceptional circumstances, the court may
make an order extending the maximum
period of the direction and, if applicable,
15
detention for a further period specified in the
order.
(4) The further period specified under sub-
section (3) must be a period expiring on or
before the expiry of 10 hours after the
20
direction was given to the directed person.
(5) If an order is made under this section, the
member of the police force who applied for
the order must serve a copy of it personally
on the directed person.
25
8AH. Telephone or fax application for extension
order
(1) A member of the police force may apply for
an order under section 8AG by telephone or
facsimile machine if--
30
(a) the application is made--
(i) before 9 a.m. or after 5 p.m. on a
weekday; or
(ii) on a Saturday, Sunday or public
holiday; or
35
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(b) the member reasonably believes that it
is impracticable to make the application
in person.
(2) Before applying by telephone or facsimile
machine, the member must complete a form
5
of application setting out the grounds on
which the order is sought.
(3) On an application made by telephone or
facsimile machine, the court is not bound by
the rules of evidence.
10
(4) If the court makes an order under
section 8AG on an application made by
telephone or facsimile machine, the court
must inform the member of the terms of the
order, the period of operation of the order
15
and the venue of the court for the hearing of
the complaint.
(5) If an order under section 8AG is made on an
application made by telephone or facsimile
machine, the member who made the
20
application--
(a) must complete a form of order in the
terms indicated by the court under sub-
section (4) and must write on it the
name of the magistrate who constituted
25
the court that made the order and the
date on which and the time at which it
was made; and
(b) must ensure that the form of order
completed by the member is received at
30
the venue of the court nominated in the
order before the hearing of the
complaint.
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8AI. Police to notify directed person when
direction ceases
When a direction under this Division ceases
to be in force, the directing member--
(a) must immediately notify the directed
5
person, orally or in writing, that the
direction has ceased to be in force; and
(b) if the directed person is detained under
this Division, must immediately release
him or her from detention.
10
8AJ. No questioning during holding period
(1) While a direction is in force under this
Division, a member of the police force must
not interview or question the directed person
in relation to any offence or alleged offence.
15
(2) Sub-section (1) applies whether or not the
directed person is in detention under this
Division.
8AK. Court may hear directed person or
aggrieved family member
20
(1) The court may, if practicable, hear a directed
person or an aggrieved family member or
both on the hearing of a complaint in respect
of the directed person or an application for
an extension order under section 8AG
25
(including an application made in accordance
with section 8AH).
(2) Sub-section (1) applies whether or not the
directed person is in detention under this
Division.'.
30
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Act No.
5. Consequential amendments
(1) After the heading to Part 2 of the Principal Act
insert--
"Division 1--Intervention Orders and Interim
Intervention Orders".
5
(2) After section 8(1) of the Principal Act insert--
"(1AA) In determining whether it is satisfied for the
purposes of sub-section (1), the court is not
to take into account whether or not the
defendant is or has been the subject of a
10
direction, or detained, under Division 2.".
(3) After section 9(3) of the Principal Act insert--
"(4) In determining whether he or she is satisfied
for the purposes of sub-section (1)(b)(ii), the
registrar or magistrate is not to take into
15
account whether or not the defendant is or
has been the subject of a direction, or
detained, under Division 2.".
6. Entry and search of premises
After section 18AB(1)(b) of the Principal Act
20
insert--
"(ba) the member reasonably believes that the
person is refusing or failing, or has refused
or failed, to comply with a direction to which
the person is subject under Division 2 of
25
Part 2; or".
13
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Crimes (Family Violence) (Holding Powers) Act 2005
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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