Crimes (Family Violence) (Amendment) Regulations 2006 (Vic)

Crimes (Family Violence) (Amendment) Regulations 2006

S.R. No. 78/2006

TABLE OF PROVISIONS

Regulation  Page

1.Objective

2.Authorising provision

3.Substitution of regulation 1

1.Objective

4.Insertion of regulations 4 and 5

4.Notice of rights and responsibilities—Form 2

5.Provision for non-English notice

═══════════════

ENDNOTES

STATUTORY RULES 2006

S.R. No. 78/2006

Crimes (Family Violence) Act 1987

Crimes (Family Violence) (Amendment) Regulations 2006

The Governor in Council makes the following Regulations:

Dated: 27 June 2006

Responsible Minister:

ROB HULLS
Attorney-General

RUTH LEACH

Clerk of the Executive Council

1.Objective

The objective of these Regulations is to amend the Crimes (Family Violence) Regulations 2005 to prescribe the statement of rights to be given to a person after the exercise of a holding power under Division 2 of Part 2 of the Crimes (Family Violence) Act 1987.

2.Authorising provision

These Regulations are made under section 26 of the Crimes (Family Violence) Act 1987.

3.Substitution of regulation 1

For regulation 1 of the Crimes (Family Violence) Regulations 2005[1] substitute—

"1.Objective

The objective of these Regulations is to prescribe certain forms for the purposes of the Crimes (Family Violence) Act 1987.".

4.Insertion of regulations 4 and 5

After Regulation 3 of the Crimes (Family Violence) Regulations 2005 insert—

"4.Notice of rights and responsibilities—Form 2

For the purposes of section 8AE(2)(b) of the Crimes (Family Violence) Act 1987—

(a)a notice is in the prescribed form if it is in Form 2; and

(b)a notice contains the prescribed information if it contains the information set out in Form 2.

FORM 2

Crimes (Family Violence) Act 1987 (Section 8AE)

INFORMATION ON HOLDING POWERS FOR A TEMPORARILY DETAINED OR DIRECTED PERSON

Time:            Date:             Station:              

Name: [insert name of person directed or detained]

You have been:

odirected to remain at, or go to and remain at, a police station; or

oapprehended and detained—

while a member of the police makes a complaint for an interim or intervention order.

I must inform you that:

·you may communicate or attempt to communicate with a friend or relative, other than the protected person (the family member who is the subject of the intended intervention order) to inform them of your whereabouts (strike-out if not applicable*);

·you may communicate or attempt to communicate with a legal practitioner.

Why this information is being given to you

You have been directed or temporarily detained under the holding power provisions of the Crimes (Family Violence) Act 1987.  The following information helps clarify what is in this Act and sets out your rights.  Victoria Police has used the direction or detention power and intends to apply for an intervention order.  Police believe that these measures are necessary to ensure the safety of the protected person or their property. Although you are not under arrest, police can direct you to be at a certain place or detain you in certain circumstances.  There is information police must tell you and give to you in writing as follows:

·If necessary, police will arrange access to an interpreter to enable you to understand why you are subject to the direction or detention.

·This Act gives police a power to direct you to remain at a place of their discretion for up to 6 hours and a further 4 hours if an extension is granted by a magistrate.

·When police have made a direction and you fail to comply, you may be detained. If you refuse, police may use reasonable force to detain you.

·It is a criminal offence to escape or attempt to escape once you have been detained.

·You will be informed immediately when the direction or detention ceases.

·Until the direction or detention ceases, you must not be questioned or interviewed by police for any alleged criminal offence.

·You can inform a friend or relative of your whereabouts, provided the police reasonably believe this will not create safety concerns for the protected person or their property.  Police will help you, as soon as practicable, to make contact or attempt to make contact.  However, under no circumstances are you allowed to contact the protected person while you are directed or detained.

·You can also use police facilities to communicate with a lawyer or their clerk.  Where practicable, arrangements will be made so you cannot be overheard.

·On hearing the application for an intervention order or an extension of time for holding powers, a magistrate may, if practicable, hear from you and the protected person.  If an extension is granted you will receive a copy of the Order which will show the expiry time for the extension.

Police Member providing information

Signature:

Name:

Rank/Registration number:

FREQUENTLY ASKED QUESTIONS

What if I do not have sufficient knowledge of the English language?

If you do not have knowledge of the English language sufficient enough to enable you to understand why you are the subject of the holding power, you have the right to access an interpreter.

Why am I being held at a police station?

You are here under the Crimes (Family Violence) Act 1987 because the police intend to apply for an intervention order against you and believe—

·that you are at least 18 years of age; and

·that using of the holding power is necessary to ensure the safety of the protected person and that person's property.  The protected person is the family member who is the subject of the intended intervention order.

How long do I have to stay here for?

You can be directed to remain here or detained here for up to 6 hours. If the police get an extension order from a magistrate, you can be held for up to 10 hours. You cannot be held for more than 10 hours.

When can I go?

You will be informed immediately when a holding power ceases and then you can go.

When will the holding power cease?

The holding power will cease—

·when an intervention order or interim intervention order is given to you (unless the police believe that further direction or detention is necessary to enable further measures to be taken to protect the protected person and their property);

·when an intervention order or interim intervention order is refused by a magistrate;

·when you are arrested under a warrant issued under section 9 of the Act;

·when a magistrate refuses to issue a warrant under section 9 of the Act (except where the complaint for the intervention order has not yet been determined by the magistrate);

·when the police member decides not to make a complaint for an intervention order or withdraws a complaint for an intervention order.

If none of the above points apply, you will be released at the end of 6 hours, or any extended period up to 10 hours if a court has extended your period of detention.

Does a direction have to be given in writing?

A police member has discretion to give a direction orally in person, or in writing, depending on the circumstances.

I am not a stalker.  Why is an intervention order being sought?

The police intend to apply for an intervention order against you under the Crimes (Family Violence) Act 1987 because of your alleged behaviour towards a family member.

Police believe an intervention order is necessary to ensure the safety of a family member and that family member's property.

This is different to a stalking intervention order which prevents the offence of stalking.

Can the police use force against me?

If you fail to comply with a direction to remain at a place, or to go and remain at a place, reasonable force may be used to apprehend and detain you.

Can I be detained in a police cell?

You can only be detained in a police cell if the police think that it is necessary to protect any person or property or to prevent you from escaping from detention.

Can I call a friend or relative?

Yes, you may try to contact a relative or friend to inform them of your location. However, you may not contact the protected person. The police may not allow you to contact a relative or friend if they believe the contact may jeopardise the safety of the protected person or their property.

Can I contact a lawyer?

Yes, you may contact a lawyer or law clerk.

Police must allow your lawyer or a clerk of your lawyer to communicate with you in circumstances in which as far as practicable the communication cannot be overheard.

What documents should I receive?

You must be given this notice. If a magistrate makes an extension order which allows police to hold you for up to a further 4 hours (a total of 10 hours) you have the right to be given a copy of that order. If an intervention order is made by a magistrate, you will receive a copy of the intervention order.

What questions must I answer?

Police cannot interview or question you in relation to any offence or alleged offence while you are directed or temporarily detained under a holding power.

––––––––––––––––––––––––––––––––––––––––––––––––

* A person does not have to be informed that they may communicate or attempt to communicate with a friend or relative, or to be afforded facilities to enable the person to do so, if the member of the police force giving the information believes on reasonable grounds that the communication would be likely to jeopardise the safety of the protected person or any property of the protected person.

5.Provision for non-English notice

The notice referred to in regulation 4 may be in a language other than English if the person to whom it is given appears to be more familiar with that language.".

═══════════════

ENDNOTES

[1] Reg. 3: S.R. No. 54/2005.