Federal Register of Legislation - Australian Government

Primary content

Domestic Violence Act 1995 (NI)

  • Act Applied Law - C2017Q00011
  • No longer in force
  • View Series
Act No. 1, 1995
Act Applied Law as amended, incorporating amendments up to Norfolk Island Continued Laws Ordinance 2015 (No. 2, 2015)
This is an Act of the previous Norfolk Island Legislative Assembly that was continued in force under s16 and 16A of the Norfolk Island Act 1979.
Administered by: Infrastructure, Regional Development and Cities
Registered 01 Jun 2017
Start Date 24 May 2017
Date of repeal 29 Sep 2018
Repealed by Norfolk Island Continued Laws Amendment Ordinance 2015

 

NORFOLK                            ISLAND

 

Domestic Violence Act 1995

No. 1, 1995

Compilation No. 1

Compilation date:                              24 May 2017

Includes amendments up to:             Norfolk Island Continued Laws Ordinance 2015 (No. 2, 2015)

 

 

 

 

 

 

 

 


NORFOLK                            ISLAND

 

DOMESTIC VIOLENCE ACT 1995

 

 

TABLE OF PROVISIONS

 

PART 1  —  PRELIMINARY

         1.      Short title

         2.      Commencement

         3.      Definitions

PART 2  —  PROTECTION ORDERS

Division 1 — Applying for an order

         4.      Applications for orders

         5.      Parties

         6.      Representation of children

         7.      Service of application

Division 2  —  Orders of the Court

         8.      Circumstances in which Court may make orders

         9.      Protection orders

       10.      Matters to be taken into account

       11.      Consent orders

       12.      Counselling

       13.      Procedure in absence of respondent

       14.      Interim protection orders

Division 3  —  Miscellaneous

       15.      Protection orders - firearms

       16.      Explaining proposed orders to the respondent

       17.      Explaining proposed orders to the aggrieved person

       18.      Criminal proceedings:  hearing of application

       19.      Duration of a protection order

       20.      Duration of an interim protection order

       21.      Variation and revocation of orders

       22.      Service etc, of order

PART 3  —  POLICE FUNCTIONS AND POWERS

       23.      Police action re domestic violence

       24.      Police officer may require person to provide identification

       25.      Presence at domestic violence incident

       26.      Duty of police officer who has taken a person into custody under section 25

       27.      Police officer must apply for protection order, etc

       28.      Duty of police officers to apply for protection order in certain circumstances

       29.      Entry on and search of premises

       30.      Police actions after protection order is made

       31.      Arrest of certain offenders

       32.      Arrested person to be taken before the Court

PART 4  —  REGISTRATION OF PROTECTION ORDERS FROM OTHER TERRITORIES AND STATES

       33.      Application to register external order in Norfolk Island

       34.      Clerk to obtain copies of order and proof of service

       35.      Registration of external order

       36.      Effect of registration

       37.      Variation of registered external order

       38.      Revocation of external order

       39.      Variation of external order

       40.      Notification by external Court of registration

       41.      Evidence

PART 5  —  MISCELLANEOUS

       42.      Offence

       43.      Service other than personal service

       44.      Service of documents by police officer

       45.      Restrictions on publication of reports of proceedings

       46.      Exemption from restrictions on publication

       47.      Court to be closed

       48.      Person may be compelled to give evidence against spouse

       49.      Appeals

       50.      Operation of the Court of Petty Sessions Act 1960 not affected

       51.      Approval of crisis support organisations

       52.      Disclosure of information to an approved crisis support organisation

       53.      Regulations

 


 

NORFOLK                            ISLAND

 

Domestic Violence Act 1995

An Act relating to domestic violence and for related purposes.

PART 1  —  PRELIMINARY

Short title

      1.         This Act may be cited as the Domestic Violence Act 1995.

Commencement

      2.         This Act shall come into operation on a date fixed by the Administrator by notice published in the Gazette.

Definitions

      3.         In this Act, unless the contrary intention appears —

“aggrieved person” means a person against whom it is alleged, in proceedings under this Act, the respondent engaged in, or is likely to engage in, domestic violence;

“approved crisis support organisation” means an organisation approved under section 51;

“approved” means approved in writing by the Minister;

“child” of a person means —

(a)        the person’s biological, adopted, step or foster child who is under 18; or

(b)        another person under 18 for whom the person has care or control;

“clerk” means the Clerk or Deputy Clerk of the Court;

“Court” means the Court of Petty Sessions;

 

 


“domestic violence” means violent conduct  performed (either within or outside Norfolk Island) by a person against a related person of the person;

“domestic violence order” means —

(a)        a protection order; or

(b)        an interim protection order;

“external Court” —

(a)        means a court in another Territory or State of Australia that may make an external order; and

(b)        in relation to an external order, means the external Court that made that order;

“external order” means an order under a law of another Territory or State of Australia having the same, or substantially the same, effect as a protection order;

“firearm” has the meaning given by the Firearms Act 1997;

“household associate”, of a person, means another person who normally resides, or was normally resident, in the same household as the person (other than as a tenant or boarder);

“interim protection order” see section 14;

“police officer” means a person who is a member of the police force for the purposes of the Police Act 1931;

“premises” include a part of premises and land occupied with premises and also include —

(a)        a mobile home or its site, or both the mobile home and site;

(b)        a trailer or its site, or both the trailer and site;

(c)        a caravan or its site, or both the caravan and site;

(d)       a vehicle, vessel or aircraft; and

(e)        a road;

“protection order” see section 9;

“registered external order” means an external order registered under subsection 35(1) and includes a registered external order varied under paragraph 36(1)(c);

“related person” of a person means the person’s —

(a)        spouse;

(b)        relative; or

(c)        household associate;

“relative” of a person —

(a)        means the person’s —

(i)         parent, grandparent, parent-in-law;

(ii)        child;

(iii)       brother, sister, half-brother, half-sister, step-brother, step-sister, brother-in-law or sister-in-law;

(iv)       uncle, aunt, uncle-in-law or aunt-in-law;

(v)        nephew or niece; or

(vi)       cousin;

(b)        includes a person who would have been a relative of a kind mentioned in paragraph (a) if the first-mentioned person had been legally married to his or her de facto spouse; and

(c)        includes a former relative of a kind mentioned in paragraph (a) or (b);

“respondent”, in relation to a protection order or an interim protection order, means the person against whom the order is sought or made;

“spouse” of a person means —

(a)        the person’s husband or wife or previous husband or wife; or

(b)        another person of the opposite sex who lives with (or had previously lived with) the person as his or her husband or wife (although not legally married to the person);

“violent conduct” means —

(a)        conduct constituting an offence against any of the following provisions of the Criminal Code 2007:

(i)         Part 3.1 (unlawful killing) or 3.3 (endangering life and health), other than section 88 (culpable driving);

(ii)        Part 3.4 (offences concerning children), other than section 103 (concealment of birth)

(iii)       Part 3.6 (sexual offences);

(iv)       section 122 (using child for production of child pornography) or 125 (using the internet, etc. to deprave young people);

(v)        Part 3.9 (female genital mutilation);

(vi)       section 138 (sexual servitude);

(vii)      Division 3.11.2 (criminal damage to property) or 3.11.4 (causing public alarm);

(viii)     section 186, 187, 188 or 189 (robbery and burglary offences);

(ix)       Part 4.5 (blackmail) or 5.1 (property damage), other than section 261 (causing bushfires);

(x)        section 271 (unauthorised access, modification or impairment of computer data with intent to commit serious offence), to the extent that the serious offence referred to in that section is an offence against any of the other provisions covered by this paragraph;

(xi)       section 358 or 359 (possession of offensive weapons and disabling substances) or 360 (possession of knife in public place or school); or

(aa)      conduct constituting the offence of attempting to commit an offence against any of the provisions covered by paragraph (a); or

(b)        conduct by a person that another person has reasonable grounds to fear and in fact fears will involve the person harassing or molesting the other person in circumstances in which a Court considers making a protection order or interim protection order is justified;

“weapon” means —

(a)        a firearm or other thing ordinarily described as a firearm; or

(b)        a thing ordinarily described as a weapon that, if used in the way for which it was designed or adapted, is capable of causing death or injury; or

(c)        a thing prescribed by regulation.


PART 2  —  PROTECTION ORDERS

Division 1  —  Applying for an order

Applications for orders

      4.         An application for a protection order or interim protection order may be made by —

(a)        an aggrieved person; or

(b)        if the alleged domestic violence involves a child —

(i)         a person with whom the child normally resides; or

(ii)        the child’s parent; or

(iii)       a person who has care or control of the child; or

(iv)       the child; or

(c)        a police officer.

Parties

      5.         (1)        If the applicant in proceedings about domestic violence is a police officer, the Court may of its own motion or on the application of a person, order that a person claiming that he or she has suffered, or is likely to suffer, from domestic violence (the “aggrieved person”) is a party to the proceedings.

                  (2)        If an application to join another party is made under subsection (1) by someone other than the aggrieved person, the clerk must ensure that as soon as practicable the aggrieved person is given a copy of the application and a notice of the time and day of the hearing (the “application notice”).

                  (3)        If the aggrieved person is a child, the application notice must be given —

(a)        if the child does not normally reside with the respondent - to the person with whom the child normally resides; and

(b)        if the child has a parent, or person who has the care or custody of the child, with whom the child does not normally reside - to the parent or person who has care or custody of the child.

                  (4)        A person given an application notice under subsection (3) may apply to be a party to the proceedings.

                  (5)        The Court may order that the person making an application under subsection (4) is a party to the proceedings.

                  (6)        If an application to join another party is made under subsection (1) by someone other than the aggrieved person, before the Court makes an order under subsection (1) it must be satisfied that the aggrieved person was given the application notice.

                  (7)        Before the Court makes an order under subsection (5), it must be satisfied that the person required to be given the application notice under subsection (3) was given the notice.


Representation of children

      6.         (1)        Where —

(a)        an application for a protection order (including an interim protection order) is made by a child; and

(b)        the child is not separately represented by another person; and

(c)        it appears to the Court that the child should be so represented,

the Court may, of its own motion or on the application of a person (including the child), order that the child be separately represented by another person and the Court may make other orders as it thinks necessary to ensure the representation.

                  (2)        If the Court orders that a child be separately represented, the Court may request that the representation be arranged by the Administration.

Service of application

      7.         Subject to section 43, the clerk shall, as soon as practicable after an application for a protection order is filed, arrange for —

(a)        a copy of the application and a notice of the proceedings in the prescribed form, to be served personally on the respondent; and

(b)        if the applicant is a police officer - a copy of the application and a notice of the date on which, and time and place at which, the application is to be heard, to be served personally on the aggrieved person (other than an aggrieved person who is a child).

                  (2)        If the hearing of an application is adjourned because the application and the notice of proceedings have not been served on the respondent, the date, time and place stated in the notice of proceedings shall be the date, time and place fixed by the Court for the adjourned hearing.

Division 2  —  Orders of the Court

Circumstances in which Court may make orders

      8.         The Court deciding an application for a protection order or interim protection order for an aggrieved person may make the order if it is satisfied, on the balance of probabilities, that —

(a)        the respondent to the application engaged in domestic violence against the aggrieved person and is likely to engage in further domestic violence against the aggrieved person or another related person of the respondent; or

(b)        the respondent threatened domestic violence against the aggrieved person and is likely to engage in domestic violence against the aggrieved person or another related person of the respondent.

Protection orders

      9.         (1)        A protection order may prohibit the respondent from —

(a)        being on premises on which the aggrieved person resides or works; or

(b)        being on premises specified in the order, being premises frequented by the aggrieved person; or

(c)        being in a locality specified in the order; or

(d)       approaching within a specified distance of the aggrieved person; or

(e)        contacting, harassing, threatening or intimidating the aggrieved person; or

(f)        damaging the aggrieved person's property; or

(g)        causing another person to engage in the conduct mentioned in paragraph (e) or (f).

                  (2)        If the order contains a prohibition of the kind mentioned in paragraph (1)(a) the order may —

(a)        prohibit the respondent from taking possession of specified personal property that is reasonably needed by the aggrieved person; or

(b)        prohibit the respondent from causing another person to engage in the conduct mentioned in paragraph (a); or

(c)        direct the respondent to give specified personal property that is in the possession of the respondent and is reasonably needed by the aggrieved person to the aggrieved person.

                  (3)        The order may also specify conditions under which the respondent may —

(a)        be on premises specified in the order; or

(b)        be in a locality specified in the order; or

(c)        approach or contact a person specified in the order.

                  (4)        The Court may make an order that includes a prohibition or direction of the kind mentioned in subsection (2) despite any legal or equitable interests that the respondent may have in the property comprising the premises or in the property to which the prohibition or direction of a kind mentioned in subsection (2) relates.

                  (5)        If the Court makes an order that includes a prohibition or direction of a kind mentioned in subsections (1) or (2), the Court may extend the prohibition or direction to apply in relation to a child of the aggrieved person.

Matters to be taken into account

      10.       (1)        When deciding an application for a protection order, the matters the Court must consider include —

(a)        the need to ensure the aggrieved person is protected from violence or harassment; and

(b)        the welfare of a child affected, or likely to be affected, by the respondent’s conduct; and

(c)        the accommodation needs of the aggrieved person, the children (if any) of the aggrieved person and the children (if any) of the respondent; and

(d)       any hardship that may be caused to the respondent or to any other person if the order is made; and

(e)        if the Court proposes to include in the order a prohibition or direction of the kind mentioned in subsection 9(2) - the effect, the order is likely to have on the income, assets and liabilities of the respondent and of the aggrieved person (other than an aggrieved person who is a child); and

(f)        any other matter that the Court, in the circumstances of the case, considers relevant.

                  (2)        When considering the matters mentioned in subsection (1), the Court must consider the matters mentioned in paragraphs (1)(a) and (b) as being of primary importance.

Consent orders

      11.       The Court may, with the consent of the parties to the proceedings, make an order under this Act without proof or admission of guilt.

Counselling

      12.       When making a protection order, the Court may recommend that the respondent, the aggrieved person or any other person participate in counselling of a nature specified by the Court.

Procedure in absence of respondent

      13.       (1)        Where —

(a)        notice of the proceedings on an application for a protection order has been served on the respondent under this Act; and

(b)        the respondent does not appear in person at the Court at the time fixed for the hearing of the application for the protection order,

the Court may —

(c)        proceed to hear and decide the matter in the respondent’s absence; or

(d)       if the Court is satisfied, after considering the material before it, that it is appropriate to do so - adjourn the matter and issue a warrant for the respondent to be apprehended and brought before the Court.

Interim protection orders

      14.       (1)        The Court, or a Magistrate sitting alone, may make an interim protection order (whether or not a copy of the application has been served on the respondent), if —

(a)        an application for a protection order has been made under this Part; and

(b)        the Court, or Magistrate, is satisfied that it is necessary to make the order for the safety of the aggrieved person pending the hearing and determination of the application.

                  (2)        The Court, or Magistrate, may only make an interim protection order if the application is supported by oral evidence on oath or affirmation given by the applicant.

                  (3)        An interim protection order —

(a)        may prohibit the respondent from engaging in the type of conduct on which the application is based;

(b)        may prohibit the respondent from being on premises where the aggrieved person resides or works (or both); and

(c)        shall not contain any other prohibition or condition mentioned in section 9 unless the Court, or Magistrate, is satisfied that it is necessary in the circumstances to do so for the safety of the aggrieved person.


Division 3  —  Miscellaneous

Protection orders - firearms

      15.       (1)        If the Court, or Magistrate, makes an interim protection order against a respondent and the respondent holds a current licence issued to the respondent under the Firearms Act 1997` (a “firearm licence”) or has possession of a firearm, the Court may —

(a)        suspend the respondent’s firearm licence for a period stated in the order; and

(b)        direct a police officer to seize and detain the respondent’s firearm for the period mentioned in paragraph (a).

                  (2)        A protection order against a respondent cancels any current firearm licence issued to the respondent.

                  (3)        However, the respondent may apply at the time the Court is considering making the order to have the Court also order that subsection (2) not apply to the respondent.

                  (4)        If the Court is satisfied that the firearm licence should not be cancelled, the Court may make an order stating that subsection (2) does not apply to the respondent.

                  (5)        In making a decision under subsection (4), the Court must have regard to the matters mentioned in section 10.

                  (6)        If the respondent’s firearm licence is cancelled under subsection (2) —

(a)        the Court may also order the seizure of a firearm in the respondent’s possession; and

(b)        the firearm licence is cancelled on the day the order is served on the respondent.

Explaining proposed orders to the respondent

      16.       (1)        This section applies if —

(a)        the Court proposes to make a protection order; and

(b)        the respondent is before the Court.

                  (2)        The Court shall, before making the order, explain or cause to have explained to the respondent, in language likely to be readily understood by the respondent —

(a)        the purpose, terms and effect of the proposed order;

(b)        the consequences that may follow if the respondent fails to comply with the terms of the order;

(c)        the means by which the order may be varied or revoked; and

(d)       that, if a State or another Territory has reciprocal legislation in force, the proposed order may be registered, and enforced, in that State or other Territory without notice of registration being given to the respondent.

Explaining proposed orders to the aggrieved person

      17.       (1)        Subsection (2) applies if —

(a)        the Court proposes to make a protection order or an interim protection order; and

(b)        the aggrieved person is before the Court.


                  (2)        The Court shall, before making the order, explain or cause to have explained to the aggrieved person, in language likely to be readily understood by the aggrieved person —

(a)        the purpose, terms and effect of the proposed order;

(b)        the consequences that may follow if the respondent fails to comply with the terms of the order;

(c)        the means by which the order may be varied or revoked; and

(d)       the consequences of the aggrieved person aiding or abetting the respondent in the commission of an offence against section 42.

                  (3)        Subsection (4) applies if —

(a)        the Court proposes to make a protection order or an interim protection order;

(b)        the aggrieved person is a child; and

(c)        the person who has the care or control of the child is before the Court.

                  (4)        The Court shall, before making the order, explain or cause to have explained to the person who has care or control of the child, in language likely to be readily understood by the person —

(a)        the purpose, terms and effect of the proposed order;

(b)        the consequences that may follow if the respondent fails to comply with the terms of the order;

(c)        the means by which the order may be varied or revoked; and

(d)       the consequences of the person or the aggrieved person aiding or abetting the respondent in the commission of an offence against section 42.

Criminal proceedings:  hearing of application

      18.       If a person is charged with an offence because of certain conduct and the conduct also constitutes domestic violence —

(a)        the person may be dealt with by the relevant Court for the offence; and

(b)        the Court may make a protection order or interim protection order under this Act against the person in relation to the domestic violence.

Duration of a protection order

      19.       (1)        A protection order remains in force for a period that is specified by the Court in the order that is not more than 12 months.

                  (2)        If a protection order contains a prohibition or condition of the kind mentioned in section 9, the Court may specify different periods, of not more than 12 months, as the period for which each prohibition or condition is to remain in force.

Duration of an interim protection order

      20.       (1)        Subject to this section, an interim protection order remains in force for a period stated by the Court in the order that is not more than 10 days.

                  (2)        The Court may, by order, extend the period for which an interim order is to remain in force until the date fixed for the further hearing of the application if —

(a)        the Court adjourns the hearing of an application for a protection order; and

(b)        an interim protection order is in force in respect of the respondent.

                  (3)        An interim protection order made on an application under section 4 ceases to be in force —

(a)        if a protection order is made on the application and the respondent is present at the time it is made - when the protection order is made; or

(b)        if a protection order is made on the application but the respondent is not present at the time the protection order is made - when the protection order is served on the respondent; or

(c)        when the application is dismissed.

Variation and revocation of orders

      21.       (1)        If a protection order or an interim protection order is in force, a party to the proceedings may apply to the Court for an order varying or revoking the order.

                  (2)        On an application under subsection (1), the Court may, by order, vary or revoke the protection order or interim protection order.

                  (3)        The clerk shall ensure that a copy of an application under this section is served personally on each other person who was a party to the proceedings in which the original order was made.

                  (4)        In deciding whether to vary or revoke a protection order, the Court shall have regard to the matters mentioned in section 10.

Service etc, of order

      22.       (1)        If a protection order or an interim protection order is made or varied by the Court, the clerk shall —

(a)        arrange for an order in the prescribed form to be formally drawn up and filed in the Court;

(b)        ensure that a copy of the order is served personally on the respondent; and

(c)        ensure that a copy of the order is sent to —

(i)         a police officer; and

(ii)        each other party to the proceedings.

                  (2)        If an order is made under section 15, the clerk shall ensure that a copy of the order is sent to a police officer.

PART 3  —  POLICE FUNCTIONS AND POWERS

Police action re domestic violence

      23.       (1)        This section applies if a police officer reasonably suspects a person has been, or is about to be, the victim of domestic violence.

                  (2)        It is the duty of the officer to investigate or cause to be investigated the complaint, report or circumstance on which the officer’s reasonable suspicion is based, until the officer is satisfied the suspicion is unfounded.

                  (3)        If, after the investigation, the officer reasonably believes —

(a)        the person is an aggrieved person; and

(b)        there is sufficient reason for the officer to take action,

the officer may —

(c)        apply for a protection order or interim protection order for the aggrieved person; and

(d)       take other action that the officer is required or authorised to take under this Act.

Police officer may require person to provide identification

      24.       (1)        This section applies if a police officer has reasonable grounds for suspecting that a person —

(a)        has been involved in, or is about to be involved in, domestic violence; or

(b)        is a witness to domestic violence.

                  (2)        If the police officer believes on reasonable grounds that the name and address of the person is required for the purposes of this Act, the officer may ask the person to state the person’s name and address.

                  (3)        If the person does not state a name and address, the police officer —

(a)        may require the person to state the person’s name and address; and

(b)        must warn the person that failure to provide a correct name and address is an offence under this Act.

                  (4)        If the police officer believes on reasonable grounds the name or address given by the person is false, the officer —

(a)        may again require the person to state the person’s name and address;

(b)        may require evidence of the correctness of the name and address; and

(c)        must warn the person that failure to provide a correct name and address is an offence under this Act.

                  (5)        A person who is required under subsection (3) or (4) to state the person’s name and address must not fail to comply with the requirement, unless the person has a reasonable excuse for not complying with it.

Maximum penalty:         10 penalty units.

                  (6)        A person who is required under paragraph (4)(b) to give evidence of the correctness of the name or address must not —

(a)        fail to give the evidence unless the person has a reasonable excuse for not giving the evidence; or

(b)        give false evidence.

Maximum penalty:         10 penalty units.

                  (7)        If the police officer believes on reasonable grounds that —

(a)        a person has contravened subsection (5) or (6); and

(b)        proceedings by way of complaint and summons against the person would be ineffective,

the officer may arrest the person.

                  (8)        If —

(a)        a police officer makes a requirement under this subsection on a suspicion mentioned in subsection (1); and

(b)        the Court is not satisfied that the person —

(i)         was involved in;

(ii)        was about to be involved in; or

(iii)       was a witness to;

the domestic violence,

the person is not guilty of an offence against this section.

                  (9)        In this section —

“address” means current place of residence.

Presence at domestic violence incident

      25.       (1)        A police officer who has reasonable grounds for suspecting that domestic violence has been committed by a person (the “respondent”) against a related person of the respondent and —

(a)        the related person is in danger of personal injury by the respondent; or

(b)        the related person’s property is in danger of being damaged by the respondent,

may take the respondent into custody using such force as is reasonable and necessary.

                  (2)        The respondent taken into custody may be detained in custody until —

(a)        an application for a protection order or interim protection order against the respondent is heard and decided under subsection 27(1); or

(b)        an interim protection order is made under section 14; or

(c)        the end of 24 hours,

whichever happens first.

Duty of police officer who has taken a person into custody under section 25

      26.       (1)        A police officer who has taken a person into custody under subsection 25(1) must immediately take the person to the police officer in charge of a police station.

                  (2)        The police officer in charge of the police station must take custody of the person at the station.

                  (3)        While a person is held in custody under this section, it is unlawful for a police officer to deal with the person in respect of any offence committed at a time before the person was taken into custody.

                  (4)        A police officer may search the person and take  possession of anything found on the person that the person may use to harm the person or another person while in custody, using such force as is reasonable and necessary.

Police officer must apply for protection order, etc

      27.       (1)        If a police officer takes a person into custody under subsection 25(1), the officer must promptly bring the person before the Court for the hearing and decision of the application if the person is still in custody.

                  (2)        If —

(a)        it is not practicable to bring the person taken into custody before the Court upon an application for a protection order or interim protection order; and

(b)        the police officer is not satisfied that it is necessary to obtain an interim protection order under section 14 against the person,

the police officer must —

(c)        complete an application for a protection order; and

(d)       arrange with the police officer in charge of the police station for the person to be released from custody on such reasonable conditions as the officer in charge considers appropriate.

                  (3)        When the person is released from custody, the police officer in charge of the police station must give the person a copy of the application for the protection order and the conditions on which the person is released.

                  (4)        Conditions on which a person is released from custody under this section continue in force until —

(a)        the Court decides whether or not to make a protection order against the person; or

(b)        the Court or a Magistrate sitting alone decides whether or not to make an interim protection order against the person on an application under section 14,

whichever happens first.

Duty of police officers to apply for protection order in certain circumstances

      28.       (1)        This section applies if —

(a)        a person is released from custody on conditions under section 27; and

(b)        it is unlikely that the matter of making a protection order or an interim protection order against the person on or in connection with the application made in relation to the person under section 27 will be decided quickly and, in any case, within 7 days after the day on which the person is released.

                  (2)        The police officer who took the person into custody must make an application for an interim protection order against the person under section 4 if the officer is satisfied that it is necessary to make such an application.

Entry on and search of premises

      29.       (1)        If a police officer reasonably suspects that domestic violence is occurring, or has occurred before the officer’s arrival, on a premises, that officer, without further or other authority than this subsection and using such reasonable force as is necessary, may enter into the premises and may remain in the premises for as long as the officer considers necessary —

(a)        to verify the grounds of suspicion;

(b)        to ensure that, in the officer’s opinion, an imminent danger of domestic violence does not exist in the premises; and

(c)        to give or arrange for such assistance as is reasonable in the circumstances to any person in the premises.

                  (2)        A police officer who enters premises under subsection (1), upon request made of the officer by a person who appears to the officer to be concerned in the purpose of the entry, shall supply to that person the officer’s name, rank and number (if any) in the police force.

                  (3)        If, having entered premises (whether under subsection (1) or otherwise), a police officer has reasonable grounds for believing that domestic violence is happening on the premises, or has happened on the premises before the officer’s arrival, the officer, without further authority and using such force as is reasonable and necessary, may —

(a)        search the premises to establish whether any person on the premises is in danger of domestic violence; and


(b)        search —

(i)         the premises for weapons; and

(ii)        any person on the premises whom the officer has reasonable grounds for suspecting is in possession of a weapon; and

(c)        seize any weapons found on the premises or on a person that the officer has reasonable grounds for suspecting —

(i)         has been used for the domestic violence; or

(ii)        might be used for committing the domestic violence.

                  (4)        For the purposes of subsection (3), an apparently reliable claim made to a police officer that a weapon has been used for domestic violence may be accepted and acted on by the police officer.

                  (5)        A police officer who is about to search premises entered by the officer under this section shall inform the occupier of the premises (if the occupier is present on the premises) that the occupier is entitled to accompany the member throughout the search.

                  (6)        A police officer who seizes for retention any weapon shall, where practicable, inform the person from whose possession it is seized of the place to which the weapon is to be taken.

                  (7)        A police officer who has exercised an authority conferred by this section shall, at the first reasonable opportunity, record in a register in approved form —

(a)        in the case of entry of premises —

(i)         the identification of the premises;

(ii)        the date and time of entry; and

(iii)       the grounds for the police officer’s suspicion that domestic violence was occurring or had occurred on the premises; or

(b)        in the case of a search —

(i)         the identification of the person or premises searched;

(ii)        the object of the search; and

(iii)       the description of any weapon seized,

and the police officer’s name, rank and number (if any) in the police force, and shall sign the making of the record.

Police actions after protection order is made

      30.       (1)        This section applies if, because of a domestic violence order, a respondent is to give weapons that the respondent possesses to a police officer.

                  (2)        If the respondent was not in Court when the Court made its order, the police officer to whom the clerk has given the order must ensure that the order is given to the respondent promptly.

                  (3)        The police officer must —

(a)        if the order is given to the respondent at the respondent’s place of residence - take all steps necessary to ensure that the respondent’s weapons are immediately seized; or


(b)        in any other case - immediately make arrangements to ensure that the respondent’s weapons are surrendered to the police officer promptly and, in any case, no later than one day after the respondent is given the Court order.

                  (4)        In order to seize a weapon under paragraph (3)(a), the police officer may enter and search the respondent’s place of residence if the officer has reasonable grounds for suspecting the weapon to be at the place.

                  (5)        For the purposes of subsection (4), the officer may use such force as is reasonable and necessary.

                  (6)        A police officer must exercise the powers under this section in a way that —

(a)        is consistent with the Court order and the need to ensure the protection of the aggrieved person; but

(b)        tries to minimise disruption to the respondent.

Arrest of certain offenders

      31.       (1)        A police officer who reasonably believes that a person is committing or has committed a breach of a protection order, interim protection order or an external order, without further or other authority than this subsection and using such reasonable force as is necessary —

(a)        may arrest the offender; and

(b)        may enter into and search any premises for the purpose of making such arrest.

                  (2)        A police officer acting under the authority of subsection (1) shall be taken to be acting in execution of the officer’s duty.

Arrested person to be taken before the Court

      32.       (1)        A person arrested under section 31 shall be taken, as soon as is practicable, before the Court to be dealt with according to law.

                  (2)        Subsection 31(1) does not prevent the taking of proceedings against an offender by way of complaint and summons.

PART 4  —  REGISTRATION OF PROTECTION ORDERS FROM OTHER TERRITORIES AND STATES

Application to register external order in Norfolk Island

      33.       A person may apply to the clerk for the registration of an external order.

Clerk to obtain copies of order and proof of service

      34.       The clerk must be satisfied that —

(a)        the external order is in force by obtaining the original order or a certified copy of it; and

(b)        the order was served, or was taken to be served, on the person against whom it was made.


Registration of external order

      35.       (1)        If the clerk is satisfied about the matters mentioned in section 34 the clerk must register the external order.

                  (2)        Where an external order has been registered under subsection (1), the clerk shall —

(a)        provide a police officer with a copy of —

(i)         the application for registration; and

(ii)        the registered order; and

(b)        notify the external Court of the registration.

Effect of registration

      36.       (1)        A registered external order —

(a)        has the same effect as a protection order; and

(b)        may be enforced against a person named in the order as if it were a protection order that had been personally served on the person; and

(c)        may be varied as if it were a protection order.

                  (2)        In subsection (1) “varied” includes adapted and modified.

Variation of registered external order

      37.       Where a registered external order is varied under paragraph 36(1)(c), the clerk shall —

(a)        take such further action with respect to the order as he or she would be required to take if it were a protection order that had been varied; and

(b)        notify the external Court of the variation.

Revocation of external order

      38.       Where the clerk is notified by an external Court that an external order, in respect of which there is a registered external order, has been revoked, the clerk shall cancel the registration of the registered external order and shall notify —

(a)        a police officer; and

(b)        the person for whose benefit the external order was registered;

of the cancellation.

Variation of external order

      39.       (1)        Where the clerk is notified that an external Court, in respect of which there is a registered external order, has been varied, the clerk shall cancel the registration of the registered external order and register the external order as varied.

                  (2)        An order registered under subsection (1) takes effect on the cancellation of the registration of the registered external order under that subsection.

                  (3)        If —

(a)        before the cancellation of a registered external order under subsection (1), that order had not been enforced in respect of a breach of that order; and

(b)        the action constituting the breach would amount to a breach of the order registered under subsection (1);

the order referred to in paragraph (b) may be enforced as if the breach were a breach of that order.

Notification by external Court of registration

      40.       Where —

(a)        an external Court notifies the Court that it has registered a protection order; and

(b)        the Court varies or revokes that order;

the Court shall —

(c)        notify the external Court that the order has been varied or revoked; and

(d)       if the order has been varied - provide the external Court with a copy of that order as varied.

Evidence

      41.       A registered external order is admissible in evidence in any court by the production of a copy of the registered external order certified as a true copy by the clerk, and such a copy is evidence of the matters stated in the registered external order.

PART 5  —  MISCELLANEOUS

Offence

      42.       (1)        A respondent must not contravene a protection order or interim protection order that applies to the respondent —

(a)        if the respondent was present when the  order was made - from the time the order was made; or

(b)        if the respondent was not present when the order was made but was served with a copy of the order - from the time the order was served.

Penalty:           10 penalty units or imprisonment for 6 months, or both.

                  (2)        In subsection (1), a reference to contravening an order shall be read as including a reference to engaging in conduct outside Norfolk Island that, if it were engaged in Norfolk Island, would contravene the order.

Service other than personal service

      43.       If it appears to the Court that it is not reasonably practicable to serve a copy of an application under this Act personally, the Court may —

(a)        order that the copy of the application be served by another means that the Court considers appropriate; or

(b)        make an order for substituted service.

Service of documents by police officer

      44.       The Court may direct that a document be served on a person by a police officer if the Court considers it appropriate.


Restrictions on publication of reports of proceedings

      45.       (1)        A person shall not publish an account of any proceedings under this Act if the publication identifies —

(a)        a party to the proceedings;

(b)        a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c)        a witness in the proceedings.

Penalty:           In the case of a body corporate — 250 penalty units

                                    In the case of a natural person — 50 penalty units or imprisonment for 2 years or both.

                  (2)        However, the Court may, by order, allow publication of proceedings on terms stated in the order.

                  (3)        Proceedings for an offence against this section shall not be commenced except by, or with the consent in writing of, the Minister.

Exemption from restrictions on publication

      46.       Section 45 does not apply to a party to proceedings under this Act who informs a person of the contents of an order made in those proceedings.

Court to be closed

      47.       (1)        A Court hearing an application under this Act is not to be open to the public.

                  (2)        However, the Court may open the proceeding to the public or specific persons.

                  (3)        An aggrieved person is entitled to have a person with him or her throughout the proceedings to provide support and other assistance.

Person may be compelled to give evidence against spouse

      48.       (1)        In proceedings under this Act a husband or wife (a “party”) may be asked to give evidence that involves giving evidence against the party’s spouse.

                  (2)        If the party is asked to give the evidence mentioned in subsection (1), the party must answer truthfully even if doing so will involve giving evidence against his or her spouse.

Appeals

      49.       (1)        A party to proceedings under this Act may appeal to the Supreme Court in relation to —

(a)        the making, variation or revocation of a protection order; or

(b)        a refusal of the Court to make a protection order.

                  (2)        An appeal to the Supreme Court does not lie from —

(a)        the making, variation or revocation of an interim protection order; or

(b)        the refusal of the Court to make an interim protection order.

                  (3)        Sections 231 to 234 of the Court of Petty Sessions Act 1960 apply in relation to an appeal referred to in subsection (1).

Operation of the Court of Petty Sessions Act 1960 not affected

      50.       This Act does not affect the operation of Division 7 (surety of the peace and for good behaviour) of Part 4 of the Court of Petty Sessions Act 1960.

Approval of crisis support organisations

      51.       The Minister may, by notice in the Gazette, approve an organisation to be a crisis support organisation for the purposes of this Act.

Disclosure of information to an approved crisis support organisation

      52.       If a police officer suspects on reasonable grounds that a domestic violence offence has been, is being or is likely to be committed in relation to a person, a police officer may disclose to an approved crisis support organisation any information that is likely to aid the organisation in rendering assistance to the person or to the person’s children.

Regulations

      53.       The Administrator may make Regulations, prescribing matters —

(a)        required or permitted by this Act to be prescribed; or

(b)        necessary or convenient to be prescribed for carrying out or giving effect to this Act.

NOTES

The Domestic Violence Act 1995 as shown in this consolidation comprises Act No. 1 of 1995 and amendments as indicated in the Tables below.

 

Enactment

Number and year

Date of commencement

Application saving or transitional provision

Domestic Violence Act 1995

1, 1995

23.2.95

 

 

 

 

 

Interpretation (Amendment) Act 2012

[to substitute throughout —Commonwealth Minister for Minister; and to substitute Minister for executive member]

14, 2012

28.12.12

 

 

 

 

 

 

Ordinance

Registration

Commencement

Application, saving and transitional provision

Norfolk Island Continued Laws Amendment Ordinance 2015
(No. 2, 2015)
(now cited as Norfolk Island Continued Laws Ordinance 2015 (see F2015L01491))

17 June 2015 (F2015L00835)

18 June 2015 (s 2(1) item 1)

Sch 1 (items 344, 345)

as amended by

 

 

 

Norfolk Island Continued Laws Amendment (2017 Measures No. 1) Ordinance 2017
(No. 2, 2017)

23 May 2017 (F2017L00581)

Sch 1 (item 5): 24 May 2017 (s 2(1) item 2)

 

Table of Amendments
 

ad = added or inserted

am = amended

rep = repealed

rs = repealed and substituted

Provisions affected

How affected

3

am

14, 2012; Ord No 2, 2015 (as am by Ord No 2, 2017)

45

am

14, 2012

50

rs

Ord No 2, 2015 (as am by Ord No 2, 2017)

51

am

14, 2012