Police-issued protection orders
In some state and territory jurisdictions, police are able to issue protection orders or ‘police safety notices’ on persons who have used family violence. When police issue such notices they are generally able to attach conditions to the order that a court is empowered to make, including exclusion orders. The duration of police-issued protection orders varies significantly across the jurisdictions. In Western Australia, police-issued protection orders can either last for 24 hours—without the victim’s consent—or for 72 hours—with the consent of the victim, parent, guardian, or child welfare officer as relevant. In Tasmania, such orders may last for 12 months, unless revoked, varied or extended sooner.
The Commissions are interested in hearing whether police powers to issue protection orders are in fact increasing victim safety and protection in those jurisdictions in which police have such powers.
The Commissions’ preliminary view is that if police are given—or are to be given—powers to issue protection orders, then the rationale should be to enable them to intervene to deal with an emergency or crisis situation in circumstances where it is not reasonably practicable for the matter to be dealt with at that time by a court. Police-issued protection orders should act as an application by a police officer for a protection order in favour of the victim as well as a summons for the person against whom it is issued to appear in court within a specified short period of time—the model used in Victoria and South Australia.
Restrictions imposed on a person’s liberty through the imposition of police-issued protection orders should be reviewed by a judicial officer as soon as possible. In this regard, the Commissions have serious concerns about the Tasmanian model which allows police to impose orders that may last 12 months, and practically places an onus on the person against whom the order is made to apply for a variation or revocation. The Tasmanian provision providing that police-issued protection orders last for 12 months has the potential to make the rights and liberties of citizens unduly dependent on the decisions of police as opposed to the judiciary, and should be repealed.
- police are only able to impose protection orders to intervene in emergency or crisis situations in circumstances where it is not reasonably practicable or possible for the matter to be dealt with at that time by a court; and
- police-issued protection orders are to act as an application to the court for a protection order as well as a summons for the person against whom it is issued to appear before the court within a short specified time period. In particular, s 14(6) of the Family Violence Act 2004 (Tas)—which allows police-issued protection orders to last for 12 months—should be repealed.
The role of police and DPPs in applying to the court for protection orders
In NSW, Queensland, and Western Australia, family violence legislation places express obligations on police to investigate family violence. NSW and Western Australia have the strongest legislative directions in relation to pro-protection policing. In contrast, for example, in the ACT, police are not obliged to investigate on the basis of reasonable suspicion or to apply for protection orders. ACT police are empowered to apply for emergency orders, and are required in certain circumstances to make a written record of reasons for not applying for emergency orders.
The Commissions are interested in hearing stakeholder views on whether family violence legislation should impose express duties on police to investigate family violence matters and whether, in certain circumstances—for example, where a person’s life or safety is at serious risk—police should be required to apply for protection orders.
The Commissions tend to the view that, at the least, an approach similar to that taken in the Model Domestic Violence Laws should be adopted—that is, police should be required to investigate family violence where they have reason to believe or suspect family violence has been, is being or is likely to be committed. The Commissions endorse the approach advocated in the Model Domestic Violence Laws, adopted by a small number of jurisdictions, that following an investigation police should be required, in those cases where they did not take action, to record the reasons why.
The Commissions also endorse the views expressed by the VLRC that it is essential that victims can apply for protection orders without involving the police, and that there should be increased Indigenous-specific support services in courts to enable Indigenous people to apply for protection orders without police involvement. The Commissions are particularly interested in hearing the views of Indigenous stakeholders in each state and territory on this issue.
- impose a duty on police to investigate family violence where they have reason to suspect or believe that family violence has been, is being or is likely to be committed; and
- following an investigation, require police to make a record of their reasons not to take any action such as apply for a protection order, if they decide not to take action.
Role of DPPs
Most legislation regulating DPPs is silent on their role in protection order proceedings under family violence legislation. A notable exception is the Director of Public Prosecutions Act 1986 (NSW), which expressly empowers the NSW DPP to institute and conduct an application for a protection order under NSW family violence legislation in the local court, children’s court or district court. It also empowers the NSW DPP to institute and conduct any appeals in any court arising from such proceedings on behalf of the victim.
The Director of Public Prosecutions Act also provides that it applies to any proceedings for a protection order under NSW family violence legislation as if the proceedings were a prosecution or proceedings in respect of an offence.
Initial inquiries by the Commissions suggest that the NSW DPP does not often exercise its power to institute protection order proceedings under family violence legislation. The Commissions are interested in hearing the circumstances in which the NSW DPP has exercised or would exercise such powers.
The Commissions are also interested in hearing whether DPPs in other states and territories take an active role in protection order proceedings under family violence legislation. The Commissions heard in consultation that the Queensland DPP does not deal with protection orders under family violence legislation, and that they are normally handled by police prosecutors.