Untitled document
Crimes (Family Violence) (Holding Powers) Act 2006
Act No. 1/2006
table of provisions
Section Page
1.Purpose
2.Commencement
3.Principal Act
4.New Division 2 inserted in Part 2
Division 2—Holding Powers
8AA.Definitions
8AB.Criteria for exercise of powers
8AC.Direction power
8AD.Detention power
8AE.Procedural requirements for person directed to a police station, or person apprehended and detained
8AF.How long do holding powers last?
8AG.Extension of period
8AH.Telephone or fax application for extension order
8AI.Police to notify directed person when direction ceases
8AJ.No questioning during holding period
8AK.Court may hear directed person or aggrieved family member
5.Consequential amendments
6.Entry and search of premises
═══════════════
Endnotes
Crimes (Family Violence) (Holding Powers) Act 2006
[Assented to 7 March 2006]
The Parliament of Victoria enacts as follows:
1.Purpose
The purpose of this Act is to amend the Crimes (Family Violence) Act 1987 to provide police with holding powers in family violence situations.
2.Commencement
(1)Subject to sub-section (2), this Act comes into operation on a day to be proclaimed.
(2)If this Act does not come into operation before 1 July 2006, it comes into operation on that day.
3.Principal Act
In this Act, the Crimes (Family Violence) Act 1987 is called the Principal Act.
4.New Division 2 inserted in Part 2
After section 8 of the Principal Act insert—
'Division 2—Holding Powers
8AA.Definitions
In this Division—
"aggrieved family member" means the family member whose person or property is the subject of the intended complaint or complaint;
"complaint" means a complaint under section 7 or 8;
"directed person" in relation to a direction under this Division, means the person to whom the direction is or has been given (whether or not the person is also detained under this Division);
"directing member" in relation to a direction under this Division, means the member of the police force giving, or who gave, the direction.
8AB.Criteria for exercise of powers
A member of the police force may exercise a power under this Division in respect of a person only if—
(a)the member has reasonable grounds for suspecting that the person is of or above the age of 18 years; and
(b)the member believes on reasonable grounds that exercise of the power is necessary to ensure the safety of the aggrieved family member or to preserve any property of the aggrieved family member.
8AC.Direction power
(1)If a member of the police force intends to make a complaint in respect of a person, the member may direct the person, orally or in writing—
(a)to remain at the place where the person is when the direction is given; or
(b)to go to, and remain at, a place stated by the member; or
(c)to remain in the company of—
(i)the member; or
(ii)another member of the police force stated by the member; or
(iii)another person (the "accompanying person") stated by the member.
(2)A direction referred to in sub-section (1)(c)(iii) may be given only with the accompanying person's consent.
(3)A direction given under this section must be reasonable in the circumstances.
(4)The directing member must at the time of giving the direction inform the directed person, orally or in writing—
(a)that the directed person may be apprehended and detained if the person refuses or fails to comply with the direction; and
(b)that, if the directed person is apprehended and detained, it is an offence to escape or attempt to escape.
(5)A direction cannot be given under this section in relation to an intended complaint for an intervention order of a kind referred to in section 21A(5) of the Crimes Act 1958.
Note:Section 21A(5) of the Crimes Act 1958 provides for intervention orders in cases of stalking.
8AD.Detention power
(1)If a directed person refuses or fails to comply with a direction under section 8AC, a member of the police force may, using such force as is reasonably necessary, apprehend and detain the directed person.
(2)The directed person may be detained at a police station or other place, but may be detained in a police gaol (within the meaning of the Corrections Act 1986) only if the member considers that it is necessary to do so for the protection of any person or property or to prevent the person from escaping from detention.
Note:Section 49E of the Summary Offences Act 1966 makes it an offence to escape or attempt to escape from a place where a person is being lawfully detained.
(3)Nothing in section 479C of the Crimes Act 1958 applies to a person who escapes or attempts to escape from detention under this Division.
8AE.Procedural requirements for person directed to a police station, or person apprehended and detained
(1)This section applies if—
(a)a person is directed under section 8AC to remain at, or go to and remain at, a police station; or
(b)a directed person is apprehended and detained under section 8AD.
(2)A member of the police force must—
(a)inform the person that the person—
(i)may communicate or attempt to communicate with a friend or relative (other than the aggrieved family member) to inform them of the person's whereabouts; and
(ii)may communicate or attempt to communicate with a legal practitioner; and
(b)give the person a notice in the prescribed form and containing the prescribed information about the person's rights and responsibilities under this Division.
(3)A member of the police force must comply with sub-section (2)—
(a)for a person referred to in sub-section (1)(a)—as soon as practicable after—
(i)the direction is given, if the person is at a police station when the direction is given; or
(ii)the person arrives at the police station in any other case;
(b)for a person referred to in sub-section (1)(b) —as soon as practicable after the person is apprehended and detained.
(4)If the person wishes to communicate with a friend, relative or legal practitioner, a member of the police force—
(a)must afford the person reasonable facilities as soon as practicable to enable the person to do so; and
(b)must allow the person's legal practitioner or a clerk of the legal practitioner to communicate with the person in circumstances in which as far as practicable the communication will not be overheard.
(5)Nothing in sub-section (4) permits the person to communicate with the aggrieved family member.
(6)If the person does not have a knowledge of the English language that is sufficient to enable the person to understand why he or she is subject to a direction or detention, a member of the police force must arrange for the person to have access to a competent interpreter.
(7)Despite sub-section (2) or (4), a member of the police force is not required to inform a person that the person may communicate or attempt to communicate with a friend or relative, or to afford a person facilities to enable the person to do so, if the member believes on reasonable grounds that the communication would be likely to jeopardise the safety of the aggrieved family member or any property of the aggrieved family member.
8AF.How long do holding powers last?
(1)The maximum period for which a direction under this Division remains in force or a directed person may be detained under this Division is—
(a)6 hours after the direction is given; or
(b)if an extension is granted under section 8AG—that period as extended.
(2)Despite sub-section (1), a direction under this Division ceases to be in force and, if a directed person is detained under this Division, authorisation for the detention ceases—
(a)if an intervention order or interim intervention order is made in respect of the directed person—at the time the order is served on the directed person (subject to sub-section (3));
(b)if a warrant is issued under section 9 to arrest the directed person—at the time the directed person is arrested under the warrant;
(c)if the directing member determines not to make a complaint, or withdraws a complaint—at the time of that determination or withdrawal.
(3)If, despite an intervention order or interim intervention order being served on a directed person, the directing member believes on reasonable grounds that it is necessary for the direction (and, if applicable, detention) to continue to enable further measures to be taken for the protection of the aggrieved family member, the direction continues in force and detention (if applicable) is authorised until those measures have been taken or the period referred to in sub-section (1) expires, whichever occurs first.
Note:Section 8AB also requires the member to believe on reasonable grounds that the continued direction or detention is necessary to ensure the safety of the aggrieved family member of the directed person or to preserve any property of the aggrieved family member.
(4)If—
(a)an intervention order or interim intervention order is refused in respect of a directed person; or
(b)a warrant under section 9 to arrest a directed person is refused—
the direction ceases to be in force (subject to sub-section (5)).
(5)If a warrant under section 9 to arrest a directed person is refused but the complaint in respect of the directed person has not yet been determined or withdrawn, the direction continues in force and detention (if applicable) is authorised until the direction ceases to be in force under sub-section (1), (2), (3) or (4)(a) (as the case may be).
Note:Section 8AB also requires the member to believe on reasonable grounds that the continued direction or detention is necessary to ensure the safety of the aggrieved family member of the directed person or to preserve any property of the aggrieved family member.
8AG.Extension of period
(1)If a member of the police force considers that it is necessary for a direction or the detention of a directed person under this Division to exceed 6 hours, the member may apply to the court for an order extending the maximum period of the direction and, if applicable, detention.
(2)An application for an extension order must be made within 6 hours after the direction was given to the directed person.
(3)If the court is satisfied that there are exceptional circumstances, the court may make an order extending the maximum period of the direction and, if applicable, detention for a further period specified in the order.
(4)The further period specified under sub-section (3) must be a period expiring on or before the expiry of 10 hours after the direction was given to the directed person.
(5)If an order is made under this section, the member of the police force who applied for the order must serve a copy of it personally on the directed person.
8AH.Telephone or fax application for extension order
(1)A member of the police force may apply for an order under section 8AG by telephone or facsimile machine if—
(a)the application is made—
(i)before 9 a.m. or after 5 p.m. on a weekday; or
(ii)on a Saturday, Sunday or public holiday; or
(b)the member reasonably believes that it is impracticable to make the application in person.
(2)Before applying by telephone or facsimile machine, the member must complete a form of application setting out the grounds on which the order is sought.
(3)On an application made by telephone or facsimile machine, the court is not bound by the rules of evidence.
(4)If the court makes an order under section 8AG on an application made by telephone or facsimile machine, the court must inform the member of the terms of the order, the period of operation of the order and the venue of the court for the hearing of the complaint.
(5)If an order under section 8AG is made on an application made by telephone or facsimile machine, the member who made the application—
(a)must complete a form of order in the terms indicated by the court under sub-section (4) and must write on it the name of the magistrate who constituted the court that made the order and the date on which and the time at which it was made; and
(b)must ensure that the form of order completed by the member is received at the venue of the court nominated in the order before the hearing of the complaint.
8AI.Police to notify directed person when direction ceases
When a direction under this Division ceases to be in force, the directing member—
(a)must immediately notify the directed person, orally or in writing, that the direction has ceased to be in force; and
(b)if the directed person is detained under this Division, must immediately release him or her from detention.
8AJ.No questioning during holding period
(1)While a direction is in force under this Division, a member of the police force must not interview or question the directed person in relation to any offence or alleged offence.
(2)Sub-section (1) applies whether or not the directed person is in detention under this Division.
8AK.Court may hear directed person or aggrieved family member
(1)The court may, if practicable, hear a directed person or an aggrieved family member or both on the hearing of a complaint in respect of the directed person or an application for an extension order under section 8AG (including an application made in accordance with section 8AH).
(2)Sub-section (1) applies whether or not the directed person is in detention under this Division.'.
5.Consequential amendments
(1)After the heading to Part 2 of the Principal Act insert—
"Division 1—Intervention Orders and Interim Intervention Orders".
(2)After section 8(1) of the Principal Act insert—
"(1AA)In determining whether it is satisfied for the purposes of sub-section (1), the court is not to take into account whether or not the defendant is or has been the subject of a direction, or detained, under Division 2.".
(3)After section 9(3) of the Principal Act insert—
"(4)In determining whether he or she is satisfied for the purposes of sub-section (1)(b)(ii), the registrar or magistrate is not to take into account whether or not the defendant is or has been the subject of a direction, or detained, under Division 2.".
6.Entry and search of premises
After section 18AB(1)(b) of the Principal Act insert—
"(ba)the member reasonably believes that the person is refusing or failing, or has refused or failed, to comply with a direction to which the person is subject under Division 2 of Part 2; or".
═══════════════
Endnotes
Minister's second reading speech—
Legislative Assembly: 19 October 2005
Legislative Council: 28 February 2006
The long title for the Bill for this Act was "to amend the Crimes (Family Violence) Act 1987 to provide police with holding powers in family violence situations and for other purposes."
0
0
0