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Legislative Assembly for the ACT: 1998 Week 7 Hansard (24 September) . . Page.. 2138 ..

MR HUMPHRIES (continuing):

reasonable grounds for believing that the respondent may, unless restrained by an emergency order, physically injure an aggrieved person. This requirement will ensure that an authorised police officer may only seek an emergency order in circumstances where a police officer can be satisfied that there is a real potential for personal injury.

A police officer attending an incident who considers that the circumstances exist to support the making of an application is required to inform an authorised police officer. In these circumstances, an authorised police officer may decline to apply for an emergency order. Where an authorised police officer declines to apply for an emergency protection order he or she will be required to make a written record of those reasons.

The new provisions will also allow police to remove a person to a police station and detain that person for up to four hours to allow an order to be obtained and served on the detained person. I repeat, Mr Speaker, that this is in a particular circumstance. This is where an application has been made by an authorised police officer, on behalf of a victim, where the court is not sitting and in circumstances where he or she is satisfied - that is, the police officer is satisfied - that an arrest is not practicable or there are no grounds to arrest an alleged offender. It is most important, Mr Speaker, that we bear those circumstances in mind.

This provision reflects the detention period prescribed under legislation in Tasmania, Queensland, New South Wales and the Northern Territory. It serves as a practical tool to enable police to effect service upon an alleged perpetrator in emergency circumstances. No offence will lie against a person for breach of an order where the order has not been served upon that person. Therefore, the detention power is a necessary provision to ensure an immediate form of protection for victims of violence in a family or home situation.

In consultations held with relevant government agencies on the proposed scheme, the view was strongly held that the ACT procedure should be restricted to providing protection in emergency circumstances only, where no arrest is made or likely to be made, and for a very limited period of time. I therefore propose that the out-of-hours emergency orders should continue to reflect the present balance between the criminal process - holding a person responsible for criminal behaviour - and the civil process; that is, enabling the making of protection orders, which of course aim to prevent further incidents of domestic violence.

Police, when attending a scene where domestic violence has occurred, will still need to give consideration to the appropriateness of a criminal response prior to considering a civil application. In circumstances where a criminal offence has occurred, the appropriate response is for the alleged offender to be arrested and charged.

Where an arrest occurs, the victim of the violence can rely on the Bail Act to prevent the release on police bail of a perpetrator who poses a risk. Section 8A of the Bail Act requires that a person arrested for a domestic violence offence should be given police bail only where police are satisfied that the offender does not pose a risk to the victim.

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