Monday August 29, 2016
On 16 August 2016 the Domestic and Family Violence Protection and Other Legislation Amendment Bill 2016 was presented to the Queensland Parliament. The Bill incorporates many of the recommendations made by the Special Taskforce on Domestic and Family Violence in Queensland in its report, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland.
The objectives of the Bill are to:
- provide victims of domestic and family violence with access to earlier and more tailored protection
- ensure victim safety is at the forefront of the justice response to domestic and family violence
- require police to consider how immediate and effective proection can be provided to victims pending a court’s consideration of an application for a domestic violence order (DVO)
- provide for the automatic mutual recognition of DVOs made in other Australian jurisdictions through the National Domestic Violence Order Scheme (NDVOS), and
- hold perpetrators of violence more accountable and encourage them to change their behaviour
A long list of actions and amendments addressing those objectives is included in the Explanatory Notes. Below is a short summary of the main changes this Bill will make if it is passed through Parliament.
Police Protection Notices (PPNs)
PPNs are preliminary orders that police officers can issue while in the presence of the respondent. They generally involve standard good behaviour conditions and a 24-hour ‘cool-down’ provision that prohibits the respondent from entering the family home or contacting the aggrieved.
If passed, this Bill gives police the power to make these orders while not in the presence of the respondent. Police would also have the power to include additional conditions in PPNs such as no-contact conditions and ouster conditions. A number of these specific conditions must be imposed on respondents initially taken into custody but subsequently released before any Domestic Violence Order is made.
The Bill also allows police to broaden the scope of the order by naming children and associates of the aggrieved on the PPN.
Definition of domestic violence
Currently, the definition of domestic violence was somewhat confusing in that it may have been interpreted such that DVOs could only be ordered following an act of physical violence.
The Bill makes it clear that DVOs can be ordered by a court on the basis that victims have been threatened or have a fear that the respondent will commit domestic violence.
Courts have the discretion to impose specific conditions when making a Domestic Violence Order. The Bill makes it compulsory for courts to consider whether these additional, more specific conditions should be included in the order.
Duration of protection orders
Protections Orders currently last for up to two years, unless courts are satisfied there are ‘special reasons’ for imposing a longer duration.
The Bill broadens the court’s discretion in relation to the duration of protection orders. The Bill also provides that, unless otherwise specified, Protection Orders will now remain in force for five years from when they are made. Furthermore, there must be express reasons given for granting an order that lasts less than five years.
Family law matters
Courts currently have the discretion to consider existing family law orders when making DVOs. The legislation also grants the power for Magistrates to amend those orders in light of the proposed conditions in a DVO. The Taskforce found that because Magistrates are often hesitant to alter an order under the Family Law Act 1975 (Cth), these orders are often inconsistent with the issued DVO.
The Bill alters the previous position by now requiring a court to consider any existing family law order they are aware of and to always consider whether to exercise their powers to resolve any inconsistency between the order and the proposed DVO.
Voluntary intervention orders
Courts may make a voluntary intervention order when respondents agree to attend an approved intervention program or counselling. Compliance with these is often considered when making a protection order.
To avoid ‘bargaining’ approaches taken by some courts, the Bill amends the effect VIOs have on subsequent stages in proceedings. In particular, the Bill now prevents courts from refusing to make a protection order or vary a DVO solely on the basis that a respondent previously complied with a VIO. The Bill also requires courts to specifically consider the non-compliance with a VIO when making a protection order or when varying a DVO. Further to that, voluntary intervention orders have been renamed to intervention orders to make it clear to respondents that they must be complied with in the same way as any other court order.
The Bill introduces a framework that enables certain government and non-government service providers to share victim and perpetrator information in certain circumstances. This is to be introduced as a replacement to the existing complicated overlay of legislative provisions regarding information sharing.
Although the Bill prefers consent in the sharing of information, consent is not required. Instead, the safety of victims and their families is considered paramount and as such information may be shared for the purposes of assessing risk and managing cases where there is a serious threat to a person’s life, health or safety because of domestic violence.
Information may be shared for the following reasons:
- To be used for assessing threat of domestic violence
- To be used to respond to a serious domestic violence threat
- To be used to refer a person to a specialist DFV service
Information must be used only in the following ways:
- To assess whether there is a serious threat to a person’s life, health or safety because of domestic violence
- To lessen or prevent a serious threat to a person’s life, health or safety
The Bill includes specific safeguards to prevent to inappropriate sharing of information, including the requirement for the chief executive of the Department of Communities, Child Safety and Disability Services to develop guidelines. This must be done in consultation with the Privacy Commissioner. The Bill also includes a penalty of up to two years imprisonment or 100 penalty units for the inappropriate use or disclosure of information.
The Bill provides that the provisions will operate in conjunction with the Information Privacy Act 2009. As such, existing grounds to share information will remain valid.
For a DVO made anywhere in Australia or in New Zealand to have effect in Queensland, an aggrieved person must manually register their order with a Queensland Magistrates Court.
The Bill alters this requirement by putting in place the legal framework for a cross-jurisdictional system whereby victims will be protected regardless of the state they are in at one particular time. The Bill removes the manual registration process and instead introduces an automatic register of orders across jurisdictions. Naturally, extra-jurisdictional orders will be given the same legal effect as an order made in Queensland, including the recognition of interstate weapon license disqualifications.
The Bill increases the maximum penalty for breaching a PPN or a release condition from two years imprisonment or 60 penalty units, to three years imprisonment or 120 penalty units.
The Bill itself is over one hundred pages long and contains several additional changes to various pieces of legislation regarding domestic violence.
You can find copies of the documents at the following links:
- Domestic and Family Violence Protection and Other Legislation Amendment Bill 2016
- Explanatory Notes
The solicitors at Robertson O’Gorman are highly experienced with matters involving domestic violence. Call us today for 24-hour comprehensive legal advice on 3034 0000.