Intervention Orders (Prevention of Abuse) (Recognition of National Domestic Violence Orders) Amendment Bill

Second Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (18:04): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Government is pleased to introduce the Intervention Orders (Prevention of Abuse) (Recognition of National Domestic Violence Orders) Amendment Bill 2016.

Too often, victims of domestic violence are forced to flee their homes and conceal their whereabouts in another state in attempts to escape situations of abuse. It is vital these people are able to access protection from abuse regardless of where they are in Australia. This Bill represents South Australia's commitment, together with that of all jurisdictions at the Council of Australian Governments (COAG), to develop a National Domestic Violence Order Scheme to provide for the automatic recognition and enforcement of domestic and family violence orders in any State or Territory in Australia.

The commitment to the prevention of domestic violence is one that the South Australian Government takes very seriously. Domestic violence is a multi-faceted issue that affects a significant number of people from all sections of the community. It is a serious crime that will not be tolerated.

The Government has enacted a number of laws and programs that seek to deter domestic violence offending, improve the safety of victims and hold perpetrators to account.

For example, the Women's Domestic Violence Court Assistance Service, which commenced in 2015, provides a greater level of support for women who are victims of domestic violence in navigating the court process and increasing their access to justice. The service is State-wide and offers free and confidential support and advocacy on behalf of women who may have difficulty applying for an intervention order or reporting a breach of an intervention order.

The Residential Tenancies Act 1995 was also recently amended to protect victims of domestic violence who are renting their homes. These reforms, which commenced on 10 December 2015, assist people living in rental properties with their abusive partner to terminate the rental agreement without facing further financial penalties.

Further, all State Government departments have committed to White Ribbon Accreditation. This builds upon the implementation of domestic violence policies that are already in place across departments.

The use of protection orders is a vital tool in the prevention of domestic violence and the protection of domestic violence victims. In South Australia, the laws for the restraint of domestic and personal violence are contained in the Intervention Orders (Prevention of Abuse)Act 2009 ('the Intervention Orders Act'). The Intervention Orders Act reformed the previous system of domestic and personal restraining orders by creating a new type of order, called an 'intervention order', and broadening the range of people that can be protected by these orders.

An intervention order is a civil order that can be issued by a police officer or the Magistrates Court if it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person and the issuing of the order is appropriate in the circumstances. The Act provides protection not only from physical forms of violence, but also emotional or psychological harm and an unreasonable and non-consensual denial of financial, social or personal autonomy. The terms of an intervention order can include any form of restraint that is needed to protect the victim from abuse. For example, the order may prohibit the defendant from being on, or within, premises at which the protected person works or resides. It may also prohibit the defendant from damaging specified property and may even require the defendant to return property or take part in an appropriate intervention program.

All jurisdictions have similar legislation that allow for the issue of an order to protect victims of domestic violence ('a DVO'). At present, each jurisdiction's legislation also has a provision that allows DVOs issued by a court in one jurisdiction to be registered and enforced in another jurisdiction. Once registered, the DVO is recognised and enforceable in that jurisdiction as if it had been made there. This is largely an administrative process, however, it is recognised that, for victims, this is an additional process that can be stressful as it involves some contact with the court system.

Legislation to support the automatic recognition of DVOs across Australia was developed by the National Domestic Violence Order Scheme Working Group, which comprised representatives from police services, Attorneys'-General Departments and courts from each State and Territory.

The Domestic Violence Orders (National Recognition) Model Provisions Bill ('the Model Provisions') was endorsed by Ministers at the Law Crime and Community Safety Council meeting in November 2015 and by COAG at its meeting of 11 December 2015. The Model Provisions reflect the following agreed policy principles:

1. A DVO made anywhere in Australia, or a New Zealand DVO registered anywhere in Australia, is nationally recognised and enforceable.

2. A DVO that is nationally recognised can be amended in any jurisdiction, but only by a court.

3. If a DVO made in one jurisdiction is in force, a new order can (if necessary) be made in another jurisdiction, but only by a court.

4. The latest order in time prevails.

The Bill before the House is substantially in the form of the Model Provisions. It inserts a new Part 3A into, and makes a number of consequential amendments to, the Intervention Orders Act to enable the automatic recognition and enforcement of interstate DVOs in South Australia.

Clause 5 of the Bill inserts a new section 15A into the Intervention Orders Act to ensure any intervention order issued after the commencement of this legislation includes a declaration that the order addresses a domestic violence concern. This provision is important because the national domestic violence order scheme is to only apply to DVOs, and an intervention order in South Australia can be issued for acts of domestic violence as well as for acts of personal violence.

Relevant definitions and other preliminary matters are set out in Division 1 of new Part 3A. Division 2 contains provisions for the national recognition of DVOs.

Subdivision 1 provides that a DVO is enforceable under the new provisions if it is a 'recognised DVO'. A recognised DVO is defined in proposed section 29D as a local DVO, an interstate DVO and a registered foreign order. In South Australia, a local DVO includes a final intervention order and an interim intervention order (including an interim intervention order issued by police). A DVO becomes a recognised DVO when it is made.

Proposed section 29E deals with variations of DVOs based on the principle that a variation to a recognised DVO can be done by a court in any jurisdiction. Similarly, proposed section 29F provides for the revocation of recognised DVOs by a court in any participating jurisdiction. For example, a variation to, or a revocation of, an intervention order will be a recognised and enforceable variation in South Australia and all other jurisdictions regardless of whether the variation or revocation is done under the Intervention Orders Act in South Australia or in a participating jurisdiction by a court under a corresponding law.

Proposed section 29G implements the agreed policy principle that the latest order in time prevails. Under this section, a new recognised DVO that is enforceable against a defendant will supersede any comparable recognised DVO or local DVO made earlier than the new DVO. However, this is qualified by sub-section (7), which provides that a police issued DVO cannot override a comparable DVO made by a court (i.e. where the DVO relates to the same defendant and protected person).

The Bill also provides, in proposed section 29H, that a court may make a new local DVO even though there is a recognised DVO in force that applies to the same defendant. However, police in South Australia will only be able to issue a police interim intervention order if they are unaware that there is already a court issued recognised DVO that is enforceable against the defendant which applies to the same defendant and protected person and was made by a court of any jurisdiction.

Subdivision 2 of Division 2 deals with the enforcement of recognised DVOs. These provisions make it clear that a recognised DVO, or a recognised variation of a DVO, will be enforceable against the defendant in any participating jurisdiction provided the defendant has been properly notified of the making of the order.

Currently in South Australia, a defendant is properly notified of the making of an intervention order if a copy of the order is served on the defendant personally or in some other manner authorised by the Court. The Bill contains consequential amendments to the Intervention Orders Act to provide that service is also effected if the intervention order is made by the Court and the defendant is present in Court when the order is made. Proposed section 29J also provides, in sub-section (2), that the making of an interstate order is properly notified under the corresponding law of the jurisdiction in which it is made in the circumstances provided for by the corresponding law.

Sub-division 3 sets out provisions relating to the enforcement of non-local DVOs in South Australia. Pursuant to proposed section 29L, a non-local DVO that is a recognised DVO will be treated the same as an intervention order in South Australia. This means that any prohibition, restriction or condition imposed by a non-local DVO will be recognised in South Australia for the purposes of enforcement. Therefore, a breach of a non-local DVO that is a recognised DVO in South Australia will be prosecuted as if it were a breach of a South Australian intervention order.

Proposed section 29N also provides for the recognition of any conditions restricting the grant of a particular permit or licence, such as a firearms licence. For example, if a recognised non-local DVO disqualifies a person from holding a non-local firearms licence, the person is also disqualified from holding a local firearms licence.

Division 3 deals with the variation and revocation of recognised non-local DVOs. Under these provisions, the Magistrates Court in South Australia will have the power to vary or revoke a recognised DVO that has been issued in another jurisdiction as if it were a local DVO. Any variation or revocation made by the Court under these provisions will be recognised and enforceable in any participating jurisdiction.

Proposed section 26R provides safeguards against 'forum shopping' by providing the Court the power to decline to hear an application for a variation or revocation of a recognised non-local DVO. The Court may decline to hear an application if satisfied there has been no material change in the circumstances that gave rise to the order and that the application is in the nature of appeal against the order. Sub-section (2) also sets out a list of matters the Court may consider in determining whether or not to hear an application. For example, the Court may consider where the parties reside or work, whether there is sufficient information available to the Court in relation to the DVO and the basis on which it was made, whether there are proceedings underway for a breach of the DVO and the impact of the application on children.

Sub-section (5) also makes it clear that the Court must refuse to hear an application for a variation or revocation made by the defendant if the defendant would not be entitled to make such an application in the issuing jurisdiction. This provision is particularly important in the context of South Australian intervention orders and any application by a defendant to vary or revoke that order in an interstate court as, under the Intervention Orders Act, a defendant may not apply for a revocation or variation of an intervention order within the first 12 months.

Divisions 4 and 5 of the Bill contain provisions regarding the exchange of information between jurisdictions for the purpose of enforcing DVOs and the use of evidentiary certificates to certify that the making of a local DVO has been properly notified or that a variation to a DVO that was made in this jurisdiction has been properly notified under the Intervention Orders Act.

The transitional provisions are contained in Division 6 of the Bill. Under proposed section 29Z, the Bill will apply to any local DVO or foreign DVO that is made in this jurisdiction on or after the commencement date. This gives the Bill prospective application, which is necessary to ensure that any DVO captured by the scheme can be nationally enforced.

In respect of intervention orders issued before the commencement date of this legislation, or interstate orders that are not recognised DVOs, the transitional provisions provide a process for bringing these orders within the scope of the national scheme. Under Subdivision 4, the Court may, by order, declare any DVO made in any jurisdiction to be a recognised DVO in this jurisdiction. A person who wishes to have their order recognised under the national scheme can apply to the Court for a declaration that the DVO is a recognised DVO.

The success of the national scheme relies upon a national information sharing system that police and courts will be able to use for evidentiary and enforcement purposes. Although COAG has agreed to develop a national information sharing system that will allow access to information in real-time and ensure a high standard of data integrity, the implementation of this system is still a number of years away.

In the short-term, COAG has agreed to an interim technical solution that will provide police and courts with access to information on all DVOs that have been issued. The interim information system will provide basic data about DVOs. Courts and police in South Australia will still have to confirm information about DVOs made in other jurisdictions with the relevant jurisdiction.

The Bill will therefore commence on proclamation to allow time for the implementation of the interim information system.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal. The primary purpose of this Bill is to give effect to the South Australian component of a national recognition scheme for domestic violence orders. Proposed Part 3A incorporates model provisions that were approved by the Council of Australian Governments on 11 December 2015.

Part 2—Amendment of Intervention Orders (Prevention of Abuse) Act 2009

4—Amendment of section 3—Interpretation

The proposed amendments are consequential on the insertion of new Part 3A.

5—Insertion of section 15A

New section 15A is necessary to be inserted because intervention orders issued under the South Australian Act may be issued for a variety of reasons, including domestic abuse. Only those intervention orders that relate to domestic abuse or a domestic violence concern are part of the scheme for national recognition.

15A—Declaration that intervention order addresses domestic violence concern

New section 15A provides that, whenever an issuing authority issues an intervention order, the issuing authority must decide whether the order addresses a domestic violence concern and, if so, must declare the order to be an order that addresses a domestic violence concern. The declaration must be included in the order. An intervention order will be taken to address a domestic violence concern for the purposes of proposed Part 3A if the order is made because the defendant has committed, or because it is feared the defendant will commit, an act of domestic abuse.

6—Amendment of section 21—Preliminary hearing and issue of interim intervention order

7—Amendment of section 23—Determination of application for intervention order

8—Amendment of section 24—Problem gambling order

9—Amendment of section 26—Intervention orders

The amendments proposed to sections 21, 23, 24 and 26 are all similar and provide that, for the purposes of each of the relevant sections, an order is served on the defendant if—

the order is served on the defendant personally; or

the order is served on the defendant in some other manner authorised by the Court; or

the defendant is present in the Court when the order is made.

These proposed amendments will bring the principal Act into line with the proposed new Part 3A.

10—Insertion of Part 3A

Part 3A—National recognition of domestic violence orders

Division 1—Preliminary

29A—Interpretation

Proposed section 29A sets out definitions for the purposes of the proposed Part.

29B—Registered foreign orders

This proposed section makes provision for registered foreign orders. A registered foreign order means a foreign order made under a corresponding law of other States and Territories. A registered foreign order is taken to be made in the jurisdiction in which it is registered and is taken to have been made when it is so registered. If the registration of the order is varied or revoked, then the order is varied or revoked.

29C—Domestic violence concern

Western Australia (like South Australia) does not have a distinct category of domestic violence orders. Therefore, to distinguish domestic violence orders from other orders for the protection of persons in those States, the definition of interstate DVO (when referring to orders from those States) is limited to orders that address domestic violence concerns. The section sets out when an order will be taken to address a domestic violence concern in a participating jurisdiction (and see new section 15A for South Australian purposes).

Division 2—National recognition of DVOs

Subdivision 1—General principles

29D—Recognition of DVOs

Proposed section 29D sets out that a recognised DVO means a local DVO, an interstate DVO made in a participating jurisdiction (being South Australia or another jurisdiction that has enacted provisions that correspond with proposed Part 3A (a corresponding law)) or a foreign order that is a registered foreign order in any participating jurisdiction.

29E—Variations to DVOs

29F—Revocation of recognised DVO

Proposed sections 29E and 29F set out the circumstances in which a variation to, or revocation of, a recognised DVO is recognised in this State. In the case of a local DVO, the variation or revocation is recognised if it is done in accordance with the principal Act or it is done by a court in a participating jurisdiction under a corresponding law. In the case of an interstate DVO or foreign order, the variation or revocation is recognised if it is done in the issuing jurisdiction under the law of that jurisdiction or it is done in a participating jurisdiction under a corresponding law. A variation to a DVO that is recognised in this State is a recognised variation.

29G—Recognised DVO prevails over earlier comparable DVOs

Proposed section 29G provides that a recognised DVO that is newer than an earlier comparable recognised DVO supersedes the earlier recognised DVO. A DVO is comparable if it is made against the same defendant and it is made for the protection of 1 or more of the same protected persons.

29H—Making of new orders

Proposed section 29H provides that proposed Part 3A does not prevent the making of a local DVO even if a recognised DVO is in force that applies to the same defendant. However, a police officer is not to make a local DVO if the police officer is aware that there is already a recognised DVO that is enforceable against the defendant which applies to the same defendant and protected person and was made by a court of any jurisdiction.

Subdivision 2—Enforcement of recognised DVOs

29I—Recognised DVOs and variations are enforceable against defendant

Proposed section 29I provides that both a recognised DVO and a recognised variation to a recognised DVO are enforceable in this State.

29J—Properly notified—meaning

Proposed section 29J sets out the circumstances in which a defendant is taken to be properly notified about the making of a local DVO or an interstate DVO, or about the variation of a recognised DVO.

29K—Contravention of enforceable recognised DVO

Proposed section 29K provides that a non-local DVO (being an interstate DVO or a foreign DVO) that is a recognised DVO and (under proposed section 29I) is enforceable in this State may be enforced as if it were a local DVO and as if the defendant had been properly notified in this State about the making of the DVO. It also provides for the circumstances in which a variation may be enforced in this State.

Subdivision 3—Enforcement of non-local DVOs

29L—Non-local DVO to be treated as local DVO

Proposed section 29L provides that a recognised DVO that is a non-local DVO has the same effect in South Australia as a local DVO.

29M—Licences, permits and other authorisations

Proposed section 29M provides that any law of South Australia that limits a person's ability to hold an authorisation (such as a licence or permit) because the person is subject to a local DVO extends in the same way to a person who is subject to a recognised non-local DVO.

29N—Recognition of disqualification to hold firearms licence

Proposed section 29N provides that if a person is disqualified from holding a non-local firearms licence, or type of non-local firearms licence, the person is also disqualified from holding a local firearms licence or permit of the same type (as the case requires) under South Australian law.

29O—Orders for costs

Proposed section 29O provides that non-local DVO, to the extent that it requires the payment of money, cannot be enforced in South Australia and that the recognition of a DVO in this State does not permit a South Australian court to award costs in respect of proceedings occurring in another jurisdiction.

Division 3—Variation and revocation of recognised non-local DVOs

29P—Power of Court to vary or revoke recognised non-local DVOs

Proposed section 29P sets out when the Court can vary or revoke a recognised non-local DVO.

29Q—Application for variation or revocation of recognised non-local DVO

Proposed section 29Q sets out the circumstances in which an application can be made to the Court for the variation or revocation of a recognised non-local DVO.

26R—Decision about hearing of application

Proposed section 26R provides the Court with a discretion to hear or decline to hear an application for the variation or revocation of a recognised non-local DVO. However, the Court must refuse to hear the application if made by the defendant during any period in which the defendant is not entitled to apply for the variation or revocation of the DVO in the jurisdiction in which the DVO was issued.

Division 4—Exchange of information

29S—Issuing authorities may obtain DVO information

Proposed section 29S permits a South Australian issuing authority to obtain and use information from an issuing authority of another jurisdiction, or from a State or interstate law enforcement agency.

29T—Issuing authorities must provide DVO information

Proposed section 29T requires a South Australian issuing authority to provide, on request, information about the DVO to a court in a participating jurisdiction for the purposes of a corresponding law or to a State or interstate law enforcement agency for the purposes of its law enforcement functions.

29U—Law enforcement agencies may obtain DVO information

Proposed section 29U permits South Australia Police to obtain information about a DVO from an issuing authority (in this State or another jurisdiction) or interstate law enforcement agency and to use the information for the purposes of its law enforcement functions.

29V—Information to be provided to law enforcement agencies

Proposed section 29V requires South Australia Police to provide, on request, information about a DVO to an interstate law enforcement agency for the purpose of exercising its law enforcement functions.

Division 5—Miscellaneous

29W—Certificate evidence—notification

Proposed section 29W permits certificates to be issued stating that the making of, or variation to, a DVO has been properly notified in this State or another jurisdiction. The certificate is admissible in evidence in proceedings.

Division 6—Transitional provisions

Subdivision 1—Preliminary

29X—Interpretation

Proposed section 29X inserts a definition of commencement date for the purposes of the proposed Division. The commencement date is the day on which proposed Part 3A commences.

29Y—Enforcement of DVOs under other provisions

Proposed section 29Y provides that proposed Part 3A does not affect the enforceability in this jurisdiction of a local DVO made before the commencement date or of any interstate DVO or foreign order registered under Part 4 of the principal Act before the commencement date except as otherwise provided under the proposed Part.

Subdivision 2—DVOs to which scheme applies

29Z—DVOs made in this jurisdiction

29ZA—DVOs made in other jurisdictions

Proposed sections 29Z and 29ZA provide that Division 2 (National recognition of DVOs) of proposed Part 3A will apply to all local DVOs and foreign orders made in South Australia on or after the commencement date and to all DVOs made in other participating jurisdictions that are recognised DVOs under that jurisdiction's corresponding law.

Subdivision 3—Extension of scheme to older DVOs

29ZB—DVOs declared to be recognised DVOs

Proposed section 29ZB provides that recognised DVOs include any DVO that has been declared by the Court, or a registrar of a court of another participating jurisdiction, to be a recognised DVO.

29ZC—DVOs declared to be recognised in other jurisdictions before commencement date

Proposed section 29ZC states that the DVO is still recognised even if the relevant declaration was made before the commencement date.

Subdivision 4—Power to declare DVO to be recognised

29ZD—Power to declare DVO to be recognised

Proposed section 29ZD permits the Court to declare that a DVO made in any jurisdiction is a recognised DVO in this jurisdiction.

29ZE—Application for order

Proposed section 29ZE provides that an application for a declaration may be made by any person who would be able to make an application for variation of the DVO if the DVO were a recognised DVO.

29ZF—Declarations relating to general violence orders

Proposed section 29ZF provides that a declaration that a general violence order is a recognised DVO may be made as if the order were a DVO.

Debate adjourned on motion of Hon. T.J. Stephens.