Page 3006 - Week 08 - Thursday, 7 August 2008
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2,108 family violence cases reported to ACT Policing and over 1,800 protection orders applications were lodged in the ACT Magistrates Court.
Anecdotal evidence indicates that the full extent of domestic and personal violence in the community is substantially higher than that reported to police, and this is illustrated by the 8,738 calls that the Domestic Violence Crisis Service received from the community during this same period. It is well recognised from the significant body of research that has been undertaken in this field that many people who are subjected to this form of violence never report the offence to police. Recognising this, it is essential that the protection afforded to those in need under this act be readily available and accessible.
The purpose of this bill is multifaceted. Firstly, it introduces new review provisions at Magistrates Court level to enable the court to review a protection order that has become a final order as a consequence of an interim order being made. This process is currently governed by section 51A of the act. The ACT Supreme Court considered this provision in the case of I v S, and raised concerns as to whether this provision was compatible with the right to a fair trial enshrined in the Human Rights Act. This bill addresses issues raised in that case whilst maintaining an effective system of protections for people in fear of violence.
An interim order is a short-term protection order for an individual who seeks protection. This order can be made if the court is satisfied that an order is necessary because the order is made in the absence of the person—known as the respondent—who is allegedly a threat to the person in need of protection. The interim order triggers a process that results in a hearing involving both parties. To ensure that the person protected by the interim order remains protected, the bill includes provisions that enable the court to make a final order if the respondent does not participate in the process. Interim orders only exist until a final order is made or until the court declines to make a final order. Conversely, to ensure that the respondent also gets a fair hearing, the bill includes new review provisions that enable a respondent to seek review of a final order in particular circumstances.
These amendments will protect a respondent’s right to fair trial when he or she does not engage in the process, whilst maintaining the level of safety and protection for people who experience or fear domestic or personal violence.
As a consequence of consulting with the court staff, legal practitioners and the community sector, the bill also includes improvements to the procedure for protection orders and the interpretation of the law. The bill substantially restructures the act to distinguish between procedural and substantive provisions, with the aim of improving the use and understanding of the act.
The bill also includes new provisions to ensure safety of children and young people who are named in orders and will exclude children under 10 years of age from becoming respondents to an order. Currently, the act does not provide a legislative basis for the Department of Disability, Housing and Community Services to obtain information from the courts regarding the existence or content of a protection order in circumstances where that department is conducting a child protection investigation. Historically, child protection officers had to rely on their client providing this
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