Interaction with criminal law procedures

Although protection orders are a civil remedy, and the standard of proof to obtain them is the civil standard of the balance of probabilities, the procedures followed are those usually associated with criminal matters.

Police powers of entry, search and seizure

In most Australian jurisdictions, the police have specific legislative powers to enter premises without warrants in cases of family violence. The family violence Acts of Victoria, Western Australia, Tasmania and the Northern Territory each confer powers of entry on police. South Australian family violence legislation confers a comparatively narrower power of entry on police. If a protection order requires a person to surrender specified weapons and articles, then police may enter and search any premises or vehicle where such a weapon or article is reasonably suspected to be.^[9]

In most jurisdictions, family violence legislation, or other legislation governing criminal procedure, confers on police powers to:

•  search premises; 
•  search for and seize firearms either with or without warrant;
•  search a person and any ‘vehicle, package or thing in the person’s possession’ if the officer reasonably suspects that the person has any object that may cause injury or damage or may be used to escape; or 
•  search and seize other articles used, or that may be used, to commit family violence.

Police powers of arrest and detention

Usually, the police only exercise the power of arrest if they intend to charge the person with an offence. This requires some evidence and a judgment as to whether prosecution will be successful. However, since in family violence cases arrest ‘provides a measure of safety’, the law of arrest has been modified in some jurisdictions to provide greater powers of arrest and detention in family violence cases. These powers may be conferred either by family violence legislation or by other legislation governing criminal procedure.

Arrest

For example, in NSW an authorised officer may issue a warrant for arrest if an application for a final protection order has been made, even though the person is not alleged to have committed an offence. In Victoria, a magistrate or registrar may issue a warrant for arrest on an application for a protection order on the basis of a reasonable belief that it is necessary to achieve certain objects, including: ensuring the safety of the victim and the protection of child victims; preserving the property of a victim; or ensuring a person’s attendance at court for a mention.

Detention

In the majority of Australian jurisdictions, there are powers to enable police to detain people who have used family violence, principally but not exclusively for purposes associated with issuing, serving or applying for protection orders. The precise form of these powers differs. In NSW, Victoria, Western Australia and South Australia, these powers take the form of a power to direct or require a person to remain in a designated place in default of which the person may be arrested.

In NSW, for example, if a police officer makes or is about to make an application for a provisional order he or she has a power to direct a person to remain at the scene of the incident or, in a case where the person has left the scene, at another place where the police officer locates the person. If a person refuses to remain at the specified place, the police officer may arrest and detain the person at the scene of the incident or other place, or arrest and take the person to a police station and detain the person there until a provisional protection order is made and served. There is no maximum limit on the time of this detention.

The maximum time limit of these ‘holding’ powers varies, with Tasmania providing no limit; South Australia limiting the time of detention after arrest at two hours, with an extension allowing an aggregate of eight hours by court order; Queensland, the ACT and the Northern Territory allowing four hours; and Victoria providing for up to six hours on the authority of the police and a maximum of ten hours by order of a court.

Failure to identify primary aggressor

The Commissions also heard that, apart from any specific issues concerning the exercise of special police powers, there are some concerns on the part of advocates in the family violence sector that police may be failing to identify the primary aggressor and the primary victim when attending incidents, resulting in a significant number of women being charged with family violence offences and having protection order applications taken out against them in inappropriate cases.

Commissions’ views

Police powers

The Commissions are interested in hearing stakeholder views about whether issues arise in practice concerning the availability, scope and exercise of police powers of entry, search, seizure, arrest and detention in family violence cases, and whether any such issues require legislative redress.

The Commissions note the concerns expressed about the practical implications of the provisions in NSW family violence legislation empowering police in certain circumstances to direct a person who has used violence to remain at the scene of an incident, particularly where the incident occurs in a remote area.^[10] There may be serious implications for a victim’s safety and wellbeing, particularly in an emotionally charged atmosphere in the aftermath of violence. A victim should be able to remain in the home while the police, if necessary, can remove the person who has used violence from the scene, or direct that person to leave the scene and remain in another designated place for the purpose of the police applying for, issuing or serving a protection order. The Commissions are interested in hearing from stakeholders in other jurisdictions where police do not have such removal powers as to whether this causes any problems in practice.

The Commissions are also interested in stakeholder views about whether there is some merit in the approach of those jurisdictions that empower police to detain persons who have used violence to detain such persons for a reasonably short period for the purpose of making arrangements to secure the safety of victims and affected children once the purpose of detention associated with obtaining a protection order has been fulfilled. In such cases, however, the period of detention must be as short as reasonably practicable to allow the objective of safeguarding victim safety to be fulfilled.

Failure to identify primary aggressor

The Commissions note concerns about police potentially failing to identify primary aggressors and primary victims, resulting in the inappropriate charging of victims or the making of applications for protection orders against primary victims. The Commissions consider that this is an area appropriately addressed by improved police education and training about the dynamics of family violence. Education and training of police officers, and the benefits that may flow from specialised police officers or police units dealing with family violence are discussed in Chapter 20. The Commissions also endorse the suggestion made by the WA review of family violence legislation that consideration should be given to having skilled counsellors attend family violence incidents together with police. The Commissions are, however, interested in views about whether legislative reform is needed in this area, noting that this question has been raised in the review of the Queensland family violence legislation.

Bail

Presumption against bail

Once arrested for an offence related to family violence, a person may be released on bail—either by the police or the court. The release of the person arrested may be dangerous for the victim of family violence. In response, special bail laws have been enacted, for example, the family violence legislation of Tasmania contains a presumption against bail. A person is not to be granted bail unless a court, judge or police officer is satisfied that the release of the person on bail would not be likely to affect adversely the safety, wellbeing and interests of an affected person or affected child.

The Commissions are interested in hearing views about the operation in practice of provisions which contain a presumption against bail or displace presumptions in favour of bail in the context of family violence offences. The Commissions are interested in hearing whether the application of such provisions in practice strikes the right balance between ensuring the safety and wellbeing of victims, as well as safeguarding the rights of accused persons. In particular, the Commissions note that the presumption against bail in the Tasmanian family violence legislation is relatively broad in its scope, especially in its potential application to non-physical violence. As economic abuse and emotional abuse are offences in Tasmania, an accused charged with such offences may be refused bail. The Commissions are interested in hearing views about whether the presumption should be modified or narrowed.

Notifying victims of bail conditions

It is imperative that victims of family violence—including those who are the subject of a protection order under family violence legislation—are informed of decisions to grant or refuse bail. Where an offender is released on bail, victims should be informed of the conditions of bail. The Commissions note concerns expressed to the Inquiry that, in practice, victims in the ACT are not being informed of bail outcomes despite a statutory obligation to do so. The Commissions are interested in hearing whether, in practice, victims of family violence who are involved in protection order proceedings under family violence legislation are being informed of bail conditions imposed on the offender.

The Commissions note that there is precedent for a legislative obligation to notify victims of bail decisions in the Bail Act 1992 (ACT) and consider that such an obligation should be imposed in other jurisdictions. However, any legislative obligation to inform victims of bail decisions must be supplemented by other measures—including education and training of police and prosecutors—to ensure it is implemented. Therefore, a legislative obligation should be reinforced by practical directions to police and prosecutors in, for example, police codes of conduct or operating procedures; and prosecutorial guidelines or policies.

Overlap between bail and protection orders

Inconsistent bail and protection order conditions may lead to an accused inadvertently breaching bail, and being exposed to arrest and potentially being refused bail. The Commissions are interested in hearing whether, in practice, judicial officers are imposing inconsistent bail and protection order conditions and, if so, what measures can be taken to address this. For example, the practice of imposing a bail condition on an accused to abide by the conditions contained in a protection order appears to be one way of avoiding inconsistency.

The Commissions consider that where conduct constituting family violence gives rise to concurrent protection order and criminal proceedings, judicial officers should be able to impose either or both protective bail conditions and protection orders. The Commissions endorse the recommendation made by the Law Reform Commission of WA to amend the Bail Act 1982 (WA) to allow a judicial officer on grant of bail to consider whether specific purposes of bail might be served or assisted by a protection order, protective bail conditions or both.