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Crimes (Family Violence) (Holding Powers) Bill
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purpose of the Act to amend the Crimes (Family
Violence) Act 1987 to provide police with holding powers in
family violence situations.
Clause 2 provides that the Act has a commencement date of 1 July 2006 if
it is not proclaimed earlier.
Clause 3 provides that the Principal Act for the purpose of the Bill is the
Crimes (Family Violence) Act 1987.
Clause 4 inserts new Division 2 (new sections 8AA to 8AK) in Part 2 of
the Crimes (Family Violence) Act 1987, to create holding
powers for police in family violence situations.
New section 8AA inserts several new definitions in the Crimes
(Family Violence) Act 1987 for the purposes of new Division 2
of Part 2.
The new definition of "aggrieved family member" is similar to
the definition of "aggrieved family member" that applies to the
remainder of the Crimes (Family Violence) Act 1987. The new
definition of "aggrieved family member" differs by including
aggrieved family members to a prospective complaint for an
intervention order. This is to account for the fact that holding
powers may be exercised by a police member when they form the
intention to make a complaint for an intervention order, but prior
to making the complaint.
The new definition of "directed person" means a person who is or
has been subject to a direction under new section 8AC, and
includes those persons who are also detained under new section
8AD following refusal or failure to comply with a direction.
The new definition of "directing member" means the member of
the police force who is giving, or who gave, the direction under
new section 8AC.
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551390 BILL LA INTRODUCTION 18/10/2005
New section 8AB provides that a member of the police force may
direct a person under new section 8AC, or subsequently
apprehend and detain a person under new section 8AD, where
they have reasonable grounds for--
· suspecting that the person is at least 18 years old; and
· believing that the exercise of these powers is necessary
to ensure the safety of the aggrieved family member or
to preserve their property. This is identical to the
grounds for the court making an interim intervention
order under section 8(1) of the Crimes (Family
Violence) Act 1987.
New section 8AC(1) provides a further criterion for the direction
power of an intention of the member of the police force to make a
complaint for an intervention order. Upon forming this intention,
the member of the police force may direct the person to--
· remain at the place where the person is when the
direction is given; or
· go to, and remain at, a place stated by the member; or
· remain in the company of--
· the police member; or
· another police member stated by the police
member; or
· another person stated by the police member.
The direction may be given orally or in writing.
New section 8AC(2) provides that a direction to remain in the
company of another person who is not a member of the police
force may only be given with that person's consent.
New section 8AC(3) provides that a direction under new
section 8AC must be reasonable in the circumstances.
New section 8AC(4) provides that, at the time of giving the
direction, the police member must inform the directed person that
refusing or failing to comply with the direction may result in their
apprehension and detention under new section 8AD, and that, if
apprehended and detained under new section 8AD, it is an
offence to escape or attempt to escape. This offence is provided
in section 49E of the Summary Offences Act 1966 and a note at
the foot of new section 8AD(2) refers to this offence.
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New section 8AC(5) excludes use of the direction power under
new section 8AC where the police member intends to make a
complaint for an intervention order under section 21A(5) of the
Crimes Act 1958. The effect of new section 8AC(5) is to
confine application of new Division 2 of Part 2 of the Crimes
(Family Violence) Act 1987 to family violence situations.
New section 8AD provides a detention power where a person
refuses or fails to comply with a direction under section 8AC.
New section 8AD(1) provides that a member of the police force
may use such force as is reasonably necessary to apprehend and
detain a person directed under new section 8AC where that
person refuses or fails to comply with that direction.
New section 8AD(2) provides that a person may be detained at a
police station or other place. A person may only be detained at a
police gaol (within the meaning of the Corrections Act 1986)
where the police member considers this location is necessary for
the protection of any person or property or to prevent the person
escaping from detention.
New section 8AD(3) ensures that the offence in section 479C of
the Crimes Act 1958 does not apply to a person who escapes or
attempts to escape from detention as is also referred to in new
section 8AC(4)(b). The offence in section 49E of the Summary
Offences Act 1966 is not excluded from applying to a person
who escapes or attempts to escape from detention under new
section 8AD.
New section 8AE provides some procedural requirements for
persons who are under a section 8AC direction at a police station
and persons under a section 8AD detention.
New section 8AE(2) provides an obligation on the police force to
inform the detained person of certain persons they may
communicate or attempt to communicate with, and a prescribed
form to be given to the detained person containing prescribed
information about their rights and responsibilities under the new
Division 2 of Part 2.
The persons with whom they may communicate or attempt to
communicate are--
· a friend or relative (other than the aggrieved family
member) to inform them of their whereabouts; and
· a legal practitioner.
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New section 8AE(4) provides that where a detained person does
wish to communicate with any of these people, a member of the
police force must--
· afford the person reasonable facilities as soon as
practicable to enable the communication; and
· allow the person's legal practitioner or a clerk of the
legal practitioner to communicate with the person in
circumstances where, as far as practicable, the
communication will not be overheard.
New section 8AE(5) clarifies that new section 8AE(4) does
not facilitate or permit the detained person communicating
with the aggrieved family member, consistent with new
section 8AE(2)(a)(i).
New section 8AE(6) seeks to ensure that access to a competent
interpreter is arranged for people who do not have knowledge of
the English language sufficient to enable them to understand the
reason for the direction or detention.
New section 8AE(7) provides that a police member does not have
to comply with new section 8AE(2) and (4)--i.e. advising the
directed person of their right to contact a friend or relative or
provide facilities for the person to do so--where the member
reasonably believes that such communication may endanger the
aggrieved family member or their property.
New section 8AF provides limits on how long the direction
power and detention power may continue.
New section 8AF(1) limits the duration of the direction power,
inclusive of the detention power if it has been invoked, to 6 hours
from the time the initial direction is given, or for a further period
if ordered by the court under new section 8AG. A further period
ordered by the court under new section 8AG may not allow the
total period of direction, inclusive of any detention period, to
continue beyond 10 hours.
New section 8AF(2) provides that, despite section 8AF(1), the
direction or detention power ceases upon any one of a number of
circumstances. These circumstances are--
· an intervention order or an interim intervention order
being served on the directed person; or
· the directed person being arrested under a warrant
issued under section 9 of the Crimes (Family Violence)
Act 1987; or
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· the directing police force member determining not to
make, or to withdraw, a complaint.
New section 8AF(3) provides that, despite new section 8AF(2),
where an intervention order or interim intervention order is
served on the directed person, the direction or detention power
may continue if the directing member believes on reasonable
grounds that its continuation is necessary to enable further
measures to be taken for the protection of the aggrieved family
member. The further measures are limited to those that are for
the protection of the aggrieved family member, but the directing
member must also believe the continuation of the direction or
detention power is necessary to ensure the safety of the aggrieved
family member or to preserve the property of the aggrieved
family member (see section 8AB).
New section 8AF(4) provides that the direction or detention
power also ceases where an intervention order, an interim
intervention order or a warrant under section 9 of the Crimes
(Family Violence) Act 1987 is refused. However, new
section 8AF(5) provides that where a warrant under section 9 of
the Crimes (Family Violence) Act 1987 is refused but the
complaint for the intervention order has not yet been determined
by the court, or withdrawn by the police member, the direction or
detention power continues until it ceases because of any of the
following--
· the time period under new section 8AF(1) expires; or
· an intervention order or interim intervention order is
served; or
· an intervention order or interim intervention order is
served and further measures to protect the aggrieved
family member are taken; or
· an intervention order or interim intervention order is
refused.
New section 8AG allows a member of the police force to apply to
the court for an extension of the period of the direction or
detention power beyond 6 hours. The application must be made
within 6 hours after the direction is given and the court may only
grant an extension of time where satisfied that there are
exceptional circumstances. The extension of time must not be for
a period that would cause the total period of direction, inclusive
of any detention period, to continue beyond 10 hours.
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New section 8AH provides for the application to the court for an
extension of the period of the direction, or detention power, to be
made by telephone or facsimile machine. The procedure for this
application largely mirrors that provided for telephone and
facsimile complaints for interim intervention orders in section 8
of the Crimes (Family Violence) Act 1987 where applicable;
however, an application for an extension may be made by
telephone or facsimile machine where the police member
reasonably believes that it is impracticable to make the
application in person.
New section 8AI requires police to notify the person under the
direction power or detention power when such power ceases and
immediately release the person if they are detained.
New section 8AJ prohibits police from interviewing or
questioning a person under the direction or detention power in
relation to any offence or alleged offence.
New section 8AK provides that the court may, if practicable, hear
a person who is under the direction or detention power, or an
aggrieved family member, or both, on the hearing of--
· a complaint for an intervention order or interim
intervention order; and
· an application for an extension order under section 8AG
(regardless of whether that application is made in person
or by telephone or facsimile under section 8AH).
New section 8AK is consistent with section 8(7) of the Crimes
(Family Violence) Act 1987 for interim intervention order
complaints made by telephone or facsimile machine.
Clause 5 sets out some consequential amendments to the Crimes (Family
Violence) Act 1987.
New section 8(1AA) is inserted after section 8(1) of the Crimes
(Family Violence) Act 1987 to ensure that the court does not
take a direction or detention into account in determining whether
it is satisfied that an interim intervention order is necessary to
ensure the safety of the aggrieved family member or to preserve
any property of the aggrieved family member pending the
hearing and determination of the complaint.
New section 9(4) is inserted after section 9(3) of the Crimes
(Family Violence) Act 1987 to ensure that a registrar or a
magistrate does not take a direction or detention into account in
determining whether he or she is satisfied that the personal safety
of the aggrieved family member would be seriously threatened or
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that damage would be likely to be caused to any property of the
aggrieved family member unless the defendant is was arrested
and brought into custody.
Clause 6 amends section 18AB of the Crimes (Family Violence) Act
1987 to extend the power of police to enter and search premises
to situations where they reasonably believe a person is refusing
or failing, or has refused or failed, to comply with a direction
under new section 8AC.
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