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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-06-04 Daily Xml
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Intervention Orders (Prevention of Abuse) (Miscellaneous) Amendment Bill

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (16:46): 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 Intervention Orders (Prevention of Abuse) Act 2009 ('the Act') came into operation on 9 December 2011. The Act reformed the system of domestic and personal violence restraining orders by creating a new type of order, called an intervention order, and broadening the range of people that could be protected by those orders.

An intervention order can be made to protect people from violence, threatening and controlling behaviour. The Act acknowledges not only physical forms of violence, but also, emotional or psychological harm and an unreasonable and non-consensual denial of financial, social or personal autonomy.

This Bill contains a number of amendments that will assist in the continued effective operation of the legislation as well as implement an election promise and address concerns raised by the decision of Justice Peek in Police v Siaosi [2014] SASC 131 ('Siaosi').

Many of the amendments are administrative in nature and have come about as a result of comments from the Chief Magistrate, the Commissioner of Police and government agencies. The Bill will also facilitate the electronic transfer of information between South Australia Police ('SAPOL'), the Courts and relevant public sector agencies by allowing the provision of the 'prescribed details' of an order rather than a copy of the order itself. This will reduce inefficiencies associated with manual paper-based processes and duplicative data entry across the criminal justice sector.

Section 31 of the Act is also amended to implement the Government's election promise to give courts a sentencing power to require perpetrators of domestic violence to bear the financial burden of an intervention program.

Currently intervention programs are only available in metropolitan Adelaide and are fully funded by the Government. The amendment to the Act gives the Court a discretionary power to order that a defendant, upon conviction of a breach of an intervention order involving physical violence or a threat of physical violence, to make a payment of not more than the prescribed amount toward the cost of any treatment program ordered as a term of their intervention order. This cost recovery service will allow perpetrator programs to be expanded to regional areas.

The risk of having to pay for treatment could also act as a deterrent for breaching an intervention order. The amendment has therefore been drafted to include a requirement that the Court inform a defendant that there is a possibility that the Court can order them to pay for their court mandated treatment if they breach the intervention order by an act, or a threat of, physical violence.

Under section 18 of the Act a police officer may issue an interim intervention order against a defendant if it appears to the police officer that there are grounds for issuing the order and the defendant is present before the police officer or in custody. If the defendant is not present or in custody then the police officer would need to make an application to the Court for an interim intervention order under section 21 of the Act.

At the behest of the Chief Magistrate, section 21 has been amended so that, in court proceedings for the making of an interim intervention order where the applicant is a police officer, the Court is not bound by the rules of evidence, but may inform itself as it thinks fit. In doing so, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

There is precedent for this approach. In South Australia, when determining whether to make a problem gambling family protection order under the Problem Gambling Family Protection Orders Act 2004 the Independent Gambling Authority is not bound by the rules of evidence.

Section 18(7) of the Act also requires a person against whom a police interim intervention order is issued to notify the Commissioner of Police in writing of an address for service. However, as it is not currently an offence to fail to provide this notification, SAPOL is unable to enforce this requirement. To assist police in the service of intervention orders, the Bill makes it an offence to fail to notify the Commissioner of Police of an address for service or to provide a false address. The maximum penalty for this offence will be a fine of $750 or an expiation fee of $105.

Another change that will assist police with serving intervention orders is the amendment to section 34 of the Act. Section 34 provides powers for police to facilitate service of unserved intervention orders. Currently, a police officer may require a person to remain at a particular place for so long as may be necessary for an intervention order to be served.

However, in some circumstances, such a requirement may be operationally impractical, particularly in small, rural and remote areas. To provide greater protection for victims, the Act amends section 34 so that a police officer may also require a person to accompany them to the nearest police station for the purpose of service of an intervention order. If this occurs, police have an obligation to ensure that the person is returned to the place at which the request was made or taken to a place that is near to that place, unless to do so would be against the person's wishes or there is good reason for not doing so.

The Bill also amends section 26 of the Act so that the Commissioner of Police is notified of all applications for variation or revocation of an intervention order. As the primary enforcer of all intervention orders, it is important that police are aware of any variation or revocation applications so that they can intervene and provide assistance to the victim if necessary. This will provide additional protection for a victim of domestic violence who may have been pressured to file an application to vary or revoke an intervention order.

The amendments to section 12 and Schedule 1 of the Act address issues raised by the decision of Justice Peek in Siaosi.

Siaosi was a Magistrate's Court appeal against the conviction of a charge of contravening a term of an intervention order and sentence. The term of the intervention order in question was that the person was prohibited from entering or remaining 'in the vicinity of' specified premises. Justice Peek held that the term 'in the vicinity of' was not within the powers conferred by section 12(1) of the Act.

As a result of this decision, SAPOL and the Chief Magistrate have requested amendments to the Act to enable police and the Courts to issue orders that contain the term 'in the vicinity of'. The requested amendments do two things. Firstly, section 12 of the Act is amended to allow an intervention order to prohibit a person from being on, or in the vicinity of certain premises or localities. Secondly, a transitional provision is inserted into Schedule 1 of the Act to validate any existing intervention orders that include a term that purports to prohibit the defendant from being within the vicinity of premises at which the protected person works or resides or within the vicinity of specified premises frequented by a protected person.

The amendments to section 23 of the Act require the Court, when determining whether to confirm, vary or revoke an interim intervention order, to make inquiries about the existence of any relevant Family Law Act 1975 (Cth) orders or Children's Protection Act 1993 orders and consider how the final intervention order and that existing order would interact. The Court is also required to take such steps as it considers necessary to avoid inconsistency between the orders.

In cases where a parenting order made under the Family Law Act 1975 (Cth), to the extent that it provides for a child to spend time with a person, or requires or authorises a person to spend time with the child, will be inconsistent with the terms of the intervention order, South Australian Magistrates have the power, under section 68R of the Family Law Act 1975 (Cth), to revive, vary, discharge or suspend the parenting order to remove any inconsistencies related to contact with children. If there are no concurrent proceedings on foot in the Family Court, the exercise of this power by a Magistrate would remove the need for the applicant to commence new proceedings in the Family Court to vary the parenting orders.

Finally, the Bill makes consequential amendments to the Bail Act 1985, the Criminal Law (Sentencing) Act 1988 and the Evidence Act 1929 in areas that also impact on victims of domestic violence.

Section 21B of the Bail Act 1985 is being amended to give the Court the power to order attendance at a treatment program as a condition of bail. At present, the Court may only make attendance at a treatment program a condition of bail if the defendant consents. The amendment aligns the Bail Act 1985 with the position in the Act so that where a defendant is the subject of an intervention order applications as well as on criminal charges, the Court can order that the defendant attend a treatment program even if the application for an intervention order does not proceed. As the requirement for consent is being removed, there is an additional obligation on the Court to consider the view of the defendant before ordering them to attend a treatment program as part of their bail conditions.

Section 13B of the Evidence Act 1929, which deals with the cross-examination of certain witnesses, is being amended to include an aggravated assault where the form of the aggravation is as set out in section 5AA(1)(g) of the Criminal Law Consolidation Act 1935. That is, that the offender committed the offence knowing that the victim of the offence was:

a spouse or former spouse of the offender; or

a domestic partner or former domestic partner of the offender; or

a child of whom the offender, or a spouse or domestic partner or former spouse or domestic partner of the offender, has custody as a parent or guardian; or

a child who normally or regularly resides with the offender, or a spouse or domestic partner or former spouse or domestic partner of the offender.

The amendment offers greater protection to victims in domestic violence situations.

The amendment to section 10 of the Criminal Law (Sentencing) Act 1988, which was requested by the Chief Magistrate, reinstates a provision that was deleted in 2013 to make it clear that a court may treat a defendant's participation and achievements in an intervention order program as relevant to sentence. Although there is nothing to prevent a court from taking this into account currently, the Government is happy to reinsert the provision as requested to make it clear to a court, as well as to a defendant, that successful participation in an intervention program is a relevant consideration in determining sentence.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

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

4—Amendment of section 3—Interpretation

This clause proposes the insertion of a number of new definitions into section 3. Definitions of a final intervention order and an interim intervention order will clarify the distinction between the two types of intervention order. A definition of intervention order (being an interim intervention order or a final intervention order, as the case requires) is also inserted. Other amendments are consequential on the insertion of the various definitions.

5—Amendment of section 5—Objects of Act

This proposed amendment will delete an otiose phrase from the current section.

6—Amendment of section 12—Terms of intervention order—general

The proposed amendments to section 12 will allow for an intervention order to prohibit a defendant from being on, or in the vicinity of, certain premises or a locality.

7—Amendment of section 13—Terms of intervention order—intervention programs

The proposed amendments to section 13 require a court, on making an intervention order the terms of which may require the defendant to undertake an intervention program, to endeavour to ensure that the defendant understands his or her obligations under the order and the consequences of a failure to comply with any such requirement.

8—Amendment of section 14—Terms of intervention order—firearms

The first 2 proposed amendments to this section will enable the firearms terms of an intervention order to relate to any firearm, ammunition or part of a firearm to reflect the current law in this State. The final proposed amendment is consequential on the insertion of the definition of a final intervention order in section 3.

9—Amendment of section 15—Terms of intervention order—date after which defendant may apply for variation or revocation

These proposed amendments are consequential.

10—Amendment of section 18—Interim intervention order issued by police

Currently, this section requires the Commissioner of Police to give a copy of any interim intervention order issued by a police officer to the Principal Registrar and each person protected by the order. The proposed amendment will still require the Commissioner to give a copy of any such order to each protected person but, instead of being required also to provide the Principal Registrar with a copy of the order, the Commissioner may notify the Principal Registrar in writing of the prescribed details of the order or provide the Registrar with a copy of the order.

11—Amendment of section 19—Revocation of interim intervention order by Commissioner of Police

This proposed amendment is similar to the previous amendment proposed to section 18. The Commissioner will be required to give a copy of the notice of revocation of any interim intervention order issued by a police officer to each person protected by the order and to notify the Principal Registrar in writing of the prescribed details of the order.

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

It is proposed to insert a subsection that provides that, in proceedings relating to an interim intervention order where the applicant is a police officer—

the Court is not bound by the rules of evidence but may inform itself as it thinks fit; and

the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

Further proposed amendments to section 21 provide that the Principal Registrar must notify the Commissioner of Police in writing of the prescribed details of an interim intervention order, or give the Commissioner a copy of the order, and give each protected person and (if the applicant is not a police officer) the applicant a copy of the order. Other amendments proposed to this section are related or provide clarification.

13—Amendment of section 23—Determination of application for final intervention order

The proposed amendments to this section clarify when the section is making provision in relation to a final intervention order and when it is dealing with an interim intervention order or a final intervention order. On the hearing of an application for a final intervention order, the Court may—

confirm the interim intervention order issued against the defendant as a final intervention order; or

issue a final intervention order in substitution for an interim intervention order issued against the defendant; or

dismiss the application and revoke the interim intervention order issued against the defendant.

If a final intervention order is to be made and the defendant or a person protected by the order is a child or the parent of a child, the Court must make inquiries about whether there is any relevant Family Law Act order or Children's Protection Act order and look at how the final intervention order and that other order would interact. The Court must take such steps as it considers necessary to avoid inconsistency between the intervention order and any Family Law Act order or Children's Protection Act order.

Other amendments provide for notification of the prescribed details of a final intervention order and the provision of copies of the order in similar terms as in previous provisions.

14—Amendment of section 24—Problem gambling order

The proposed amendments provide that the Principal Registrar must notify the persons listed below in writing of the prescribed details of a problem gambling order made in conjunction with a final intervention order, or give each of them a copy of the order:

the Independent Gambling Authority;

the Commissioner of Police;

the proprietor or licensee of any premises specified in the order; and

give a copy of the order to each protected person and (if the applicant for the order is not a police officer or a protected person) the applicant.

15—Amendment of section 25—Tenancy order

These proposed amendments are consequential.

16—Amendment of section 26—Intervention orders

This clause deals with court procedures relating to both interim intervention orders and final intervention orders, as the case requires. A number of amendments proposed to this section are consequential. Another requires the Court to allow the police a reasonable opportunity to be heard on an application to vary or revoke an interim intervention order before the Court determines the application. The amendment also sets out the requirements of the Principal Registrar relating to notification and the provision of copies of orders or notices of revocation of an order.

17—Amendment of section 30—Registration of foreign intervention orders

The first proposed amendment makes it clear that a foreign intervention order registered in the Court is deemed to be a final intervention order issued under the principal Act. The other amendment relates to notification of the registration of the order and the prescribed details of the order.

18—Amendment of section 31—Contravention of intervention order

It is proposed to insert a new subsection (2a) into section 31. The proposed subsection will provide that if a person is found guilty of an offence under subsection (1) or (2) where the act or omission alleged to constitute the offence involved physical violence or a threat of physical violence, the Court may, in addition to imposing a penalty for the offence—

order the convicted person to make a payment of not more than the prescribed amount toward the cost of any intervention program the person is required to undertake in accordance with the intervention order; and

make any other order that the Court thinks fit.

Another amendment updates a cross-reference.

19—Amendment of section 34—Powers facilitating service of intervention order

The amendments proposed to section 34 clarify the powers and obligations of a police officer in relation to the service of an intervention order on a person subject to the order.

20—Amendment of section 36—Power to arrest and detain for contravention of intervention order

It is proposed to amend this section by deleting subsections (2) and (3). Those subsections are unnecessary as the provisions of the Bail Act 1985 apply to a person arrested and detained for contravention of an intervention order.

21—Amendment of section 40—Dealing with items surrendered under intervention order

This amendment is consequential.

22—Amendment of Schedule 1—Transitional provisions

It is proposed to insert a clause in Schedule 1 that will validate any intervention order in force immediately before the commencement of section 6 of this measure that includes a term that purports to—

prohibit the person the subject of the order from being within the vicinity of premises at which a protected person resides or works; or

prohibit the defendant from being within the vicinity of specified premises frequented by a protected person.

Schedule 1—Related amendments

Part 1—Amendment of the Bail Act 1985

1—Amendment of section 21B—Intervention programs

This amendment would allow a bail authority to set as a condition of a bail agreement that the person undertake an intervention program without requiring the person to consent to the imposition of such a condition. The substituted subsection (2) does require the court to satisfy itself, before imposing any such condition, that—

the person is eligible for the services to be included on the program in accordance with applicable eligibility criteria (if any); and

those services are available for the person at a suitable time and place,

and to give consideration to any representations made by the person in relation to the program.

Part 2—Amendment of Criminal Law (Sentencing) Act 1988

2—Amendment of section 10—Sentencing considerations

This amendment would make it clear that a court may treat a defendant's participation and achievements in an intervention program as relevant to sentence.

3—Amendment of section 19A—Intervention orders may be issued on finding of guilt or sentencing

This amendment is consequential.

Part 3—Amendment of Evidence Act 1929

4—Amendment of section 13B—Cross-examination of certain witnesses

This clause amends the list of offences to which section 13B of the Evidence Act 1929 applies by the addition of certain aggravated offences under section 20 of the Criminal Law Consolidation Act 1935. The section applies to an aggravated offence under section 20 if the aggravating circumstances are those referred to in section 5AA(1)(g) of that Act.

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

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