South Australia: Intervention Orders (Prevention of Abuse) Act 2009 (SA)

South Australia Intervention Orders (Prevention of Abuse) Act 2009 An Act to provide for intervention orders and associated problem gambling and tenancy orders in cases of domestic and non‑domestic abuse; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Application of Act outside State Part 2—Objects of Act 5 Objects of Act Part 3—Intervention and associated orders Division 1—General 6 Grounds for issuing intervention order 7 Persons for whose protection intervention order may be issued 8 Meaning of abuse—domestic and non‑domestic 9 Priority for certain interventions 10 Principles for intervention against abuse 11 Ongoing effect of intervention order 12 Terms of intervention order—general 13 Terms of intervention order—intervention programs 14 Terms of intervention order—firearms 15 Terms of intervention order—date after which defendant may apply for variation or revocation 15A Declaration that intervention order addresses domestic violence concern 16 Inconsistent Family Law Act or State child protection orders 17 Explanation for defendant and protected persons Division 2—Police orders 18 Interim intervention order issued by police 19 Revocation of interim intervention order by Commissioner of Police Division 3—Court orders 20 Application to Court for intervention order 21 Preliminary hearing and issue of interim intervention order 22 Adjournments 23 Determination of application for intervention order 24 Problem gambling order 25 Tenancy order Division 4—Variation or revocation of orders 26 Intervention orders 26A Interim variation where application made by police 27 Problem gambling orders Division 5—Evidentiary matters 28 Burden of proof 28A Use of recorded evidence where application made by police 29 Special arrangements for evidence and cross‑examination Part 3A—National recognition of domestic violence orders Division 1—Preliminary 29A Interpretation 29B Registered foreign orders 29C Domestic violence concern Division 2—National recognition of DVOs Subdivision 1—General principles 29D Recognition of DVOs 29E Variations to DVOs 29F Revocation of recognised DVO 29G Recognised DVO prevails over earlier comparable DVOs 29H Making of new orders Subdivision 2—Enforcement of recognised DVOs 29I Recognised DVOs and variations are enforceable against defendant 29J Properly notified—meaning 29K Contravention of enforceable recognised DVO Subdivision 3—Enforcement of non‑local DVOs 29L Non‑local DVO to be treated as local DVO 29M Licences, permits and other authorisations 29N Recognition of disqualification to hold firearms licence 29O Orders for costs Division 3—Variation and revocation of recognised non‑local DVOs 29P Power of Court to vary or revoke recognised non‑local DVOs 29Q Application for variation or revocation of recognised non‑local DVO 29R Decision about hearing of application Division 4—Exchange of information 29S Issuing authorities may obtain DVO information 29T Issuing authorities must provide DVO information 29U Law enforcement agencies may obtain DVO information 29V Information to be provided to law enforcement agencies Division 5—Miscellaneous 29W Certificate evidence—notification Division 6—Transitional provisions Subdivision 1—Preliminary 29X Interpretation 29Y Enforcement of DVOs under other provisions Subdivision 2—DVOs to which scheme applies 29Z DVOs made in this jurisdiction 29ZA DVOs made in other jurisdictions Subdivision 3—Extension of scheme to older DVOs 29ZB DVOs declared to be recognised DVOs 29ZC DVOs declared to be recognised in other jurisdictions before commencement date Subdivision 4—Power to declare DVO to be recognised 29ZCA Interpretation 29ZD Power to declare DVO to be recognised 29ZE Application for order 29ZF Declarations relating to general violence orders Part 4—Foreign intervention orders 30 Registration of foreign intervention orders Part 5—Offences and enforcement Division 1—Offences 31 Contravention of intervention order 31A Special provisions applying to review or appeal in relation to certain offences against section 31 32 Landlord not to allow access to excluded defendant 33 Publication of report about proceedings or orders Division 2—Special police powers 34 Powers facilitating service of intervention order 35 Powers following service of intervention order 36 Power to arrest and detain for contravention of intervention order 37 Power to search for weapons and articles required to be surrendered by intervention order Division 3—Disclosure of information 38 Disclosure to police of information relevant to locating defendant Part 6—Miscellaneous 39 Delegation by intervention program manager 40 Dealing with items surrendered under intervention order 41 Evidentiary provision 42 Regulations Schedule 1—Transitional provisions Part 15—Transitional provisions 37 Continuance of restraining orders 38 Continuance of registered foreign restraining orders 39 Validation of certain intervention orders in force before commencement of section 6 of Intervention Orders (Prevention of Abuse) (Miscellaneous) Amendment Act 2015 Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Intervention Orders (Prevention of Abuse) Act 2009. 3—Interpretation (1) In this Act, unless the contrary intention appears— abuse and act of abuse—see section 8; ammunition has the same meaning as in the Firearms Act 2015; associated order means a problem gambling order or tenancy order made in association with a final intervention order; case manager means a person responsible for supervision of a defendant's participation in an intervention program; child means a person who has not attained 18 years of age; cognitive impairment includes— (a) a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder); (b) an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder); (c) a mental illness; Commissioner has the same meaning as in the Gambling Administration Act 1995; contravene includes fail to comply; Court means the Magistrates Court of South Australia; defendant—see section 6; domestic abuse—see section 8(8); domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; domestic violence concern—see sections 15A and 29C; Family Law Act order means an order, injunction, undertaking, plan, recognisance or other form of obligation imposed or agreement made under the Family Law Act 1975 of the Commonwealth; final intervention order means— (a) an interim intervention order (whether issued by a police officer or the Court) confirmed as a final intervention order by the Court under section 23; or (b) a final intervention order issued by the Court under section 23 in substitution for an interim intervention order; firearm has the same meaning as in the Firearms Act 2015; firearms terms—see section 14; foreign intervention order means an order, notice or other form of requirement under the law of another State, a Territory of the Commonwealth or New Zealand declared by regulation to be a foreign intervention order; interim intervention order means— (a) an interim intervention order issued by a police officer under section 18; or (b) an interim intervention order issued by the Court under section 21; intervention order means— (a) an interim intervention order; or (b) a final intervention order, as the case requires; intervention program means a program that provides— (a) supervised treatment; or (b) supervised rehabilitation; or (c) supervised behaviour management; or (d) supervised access to support services; or (e) a combination of any 1 or more of the above, designed to address behavioural problems (including problem gambling), substance abuse or mental impairment; intervention program manager means a person employed by the South Australian Courts Administration Authority to have general oversight of intervention programs and coordinate the implementation of relevant court orders (and includes a delegate of such a person); issuing authority— (a) in relation to an interim intervention order—means the police officer who, or the Court that, issues the interim intervention order; and (b) in relation to a final intervention order—means the Court— (i) that confirms the interim intervention order as a final intervention order under section 23; or (ii) that issues the final intervention order under section 23 in substitution for an interim intervention order, (as the case may be); non‑domestic abuse—see section 8(9); offensive material—see subsection (2); Principal Registrar means the Principal Registrar of the Court; problem gambling order—see section 24; protected person means a person for whose protection an intervention order is issued; public sector agency has the same meaning as in the Public Sector Act 2009, but does not include the Legal Services Commission; relevant public sector agency means— (a) the chief executive of the administrative unit of the Public Service that is, under a Minister, responsible for the administration of the Children's Protection Act 1993; or (b) the chief executive of the administrative unit of the Public Service that is, under a Minister, responsible for the administration of the Education and Early Childhood Services (Registration and Standards) Act 2011; or (c) the chief executive of the administrative unit of the Public Service that is, under a Minister, responsible for the administration of the Family and Community Services Act 1972; or (d) the South Australian Housing Trust; or (f) the chief executive of the administrative unit of the Public Service that is, under a Minister, responsible for the administration of the Supported Residential Facilities Act 1992; or (g) the chief executive of the administrative unit of the Public Service that is, under a Minister, responsible for the administration of the Correctional Services Act 1982; State child protection order means an order made under the Children's Protection Act 1993 or the Children and Young People (Safety) Act 2017; tenancy agreement means an agreement under which a person grants another person, for valuable consideration, a right (which may, but need not be, an exclusive right) to occupy premises for residential purposes, and includes a residential parks agreement within the meaning of the Residential Parks Act 2007; tenancy order—see section 25. (2) For the purposes of determining whether material is offensive material, the circumstances of a dealing with the material may be taken into account but, if material was inherently offensive material, the circumstances of a dealing with the material cannot be taken to have deprived it of that character. 4—Application of Act outside State This Act applies to an act of abuse whether it takes place in or outside this State and an intervention order may be issued against a person resident in or outside this State. Part 2—Objects of Act 5—Objects of Act The objects of this Act are— (a) to assist in preventing domestic and non‑domestic abuse, and the exposure of children to the effects of domestic and non‑domestic abuse, by providing for— (i) the issuing of intervention orders; and (ii) the issuing of associated orders relating to problem gambling and tenancy agreements; and (iii) the registration of foreign intervention orders; and (iv) the enforcement of South Australian and foreign intervention orders; and (b) to provide special police powers of arrest, detention and search in connection with issuing, serving and enforcing intervention orders; and (c) to further protect persons suffering or witnessing domestic or non‑domestic abuse by— (i) providing for special arrangements for witnesses in proceedings under this Act; and (ii) imposing limitations on publishing reports about proceedings or orders under this Act. Part 3—Intervention and associated orders Division 1—General 6—Grounds for issuing intervention order There are grounds for issuing an intervention order against a person (the defendant) if— (a) it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and (b) the issuing of the order is appropriate in the circumstances. 7—Persons for whose protection intervention order may be issued (1) An intervention order may be issued for the protection of— (a) any person against whom it is suspected the defendant will commit an act of abuse; or (b) any child who may hear or witness, or otherwise be exposed to the effects of, an act of abuse committed by the defendant against a person. (2) An intervention order may be issued for the protection of a person even if that person is not an applicant for the order and the application is not made on his or her behalf. (3) If an issuing authority proposes to intervene against a defendant for the protection of more than 1 person, it may do so by issuing a single intervention order or by issuing multiple intervention orders, as it considers appropriate in the circumstances. 8—Meaning of abuse—domestic and non‑domestic (1) Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse. (2) An act is an act of abuse against a person if it results in or is intended to result in— (a) physical injury; or (b) emotional or psychological harm; or (c) an unreasonable and non‑consensual denial of financial, social or personal autonomy; or (d) damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person. (3) Emotional or psychological harm includes— (a) mental illness; and (b) nervous shock; and (c) distress, anxiety, or fear, that is more than trivial. (4) Emotional or psychological harm—examples Without limiting subsection (2)(b), an act of abuse against a person resulting in emotional or psychological harm may be comprised of any of the following: (a) sexually assaulting the person or engaging in behaviour designed to coerce the person to engage in sexual activity; (b) unlawfully depriving the person of his or her liberty; (c) driving a vehicle in a reckless or dangerous manner while the person is a passenger in the vehicle; (d) causing the death of, or injury to, an animal; (e) following the person; (f) loitering outside the place of residence of the person or some other place frequented by the person; (g) entering or interfering with property in the possession of the person; (h) giving or sending offensive material to the person, or leaving offensive material where it will be found by, given to or brought to the attention of the person; (i) publishing or transmitting offensive material by means of the Internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the person; (j) communicating with the person, or to others about the person, by way of mail, telephone (including associated technology), fax or the Internet or some other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the person; (k) keeping the person under surveillance; (l) directing racial or other derogatory taunts at the person; (m) threatening to withhold the person's medication or prevent the person accessing necessary medical equipment or treatment; (n) threatening to institutionalise the person; (o) threatening to withdraw care on which the person is dependent; (oa) forcing the person to marry another person; (ob) preventing the person from entering the person's place of residence; (oc) taking an invasive image (within the meaning of Part 5A of the Summary Offences Act 1953) of the person and threatening to distribute the image without the person's consent; (od) coercing a person to terminate a pregnancy; (oe) coercing a person to not terminate a pregnancy; (p) otherwise threatening to cause the person physical injury, emotional or psychological harm or an unreasonable and non‑consensual denial of financial, social or domestic autonomy or to cause damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person. (5) Unreasonable and non‑consensual denial of financial, social or personal autonomy—examples Without limiting subsection (2)(c), an act of abuse against a person resulting in an unreasonable and non‑consensual denial of financial, social or personal autonomy may be comprised of any of the following: (a) denying the person the financial autonomy that the person would have had but for the act of abuse; (b) withholding the financial support necessary for meeting the reasonable living expenses of the person (or any other person living with, or dependent on, the person) in circumstances in which the person is dependent on the financial support to meet those living expenses; (c) without lawful excuse, preventing the person from having access to joint financial assets for the purposes of meeting normal household expenses; (d) preventing the person from seeking or keeping employment; (e) causing the person through coercion or deception to— (i) relinquish control over assets or income; or (ii) claim social security payments; or (iii) sign a power of attorney enabling the person's finances to be managed by another person; or (iv) sign a contract for the purchase of goods or services; or (v) sign a contract for the provision of finance; or (vi) sign a contract of guarantee; or (vii) sign any legal document for the establishment or operation of a business; (f) without permission, removing or keeping property that is in the ownership or possession of the person or used or otherwise enjoyed by the person; (g) disposing of property owned by the person, or owned jointly with the person, against the person's wishes and without lawful excuse; (h) preventing the person from making or keeping connections with the person's family, friends or cultural group, from participating in cultural or spiritual ceremonies or practices, or from expressing the person's cultural identity; (i) exercising an unreasonable level of control and domination over the daily life of the person. (6) If a defendant commits an act of abuse against a person, or threatens to do so, in order to cause emotional or psychological harm to another person or to deny another person financial, social or personal autonomy, the defendant commits an act of abuse against that other person. (7) A defendant may commit an act of abuse by causing or allowing another person to commit the act or to take part in the commission of the act. (8) If the act of abuse is committed by a defendant against a person with whom the defendant is or was formerly in a relationship, it is referred to in this Act as an act of domestic abuse; and for that purpose, 2 persons are in a relationship if— (a) they are married to each other; or (b) they are domestic partners; or (c) they are in some other form of intimate personal relationship in which their lives are interrelated and the actions of 1 affects the other; or (d) 1 is the child, stepchild or grandchild, or is under the guardianship, of the other (regardless of age); or (e) 1 is a child, stepchild or grandchild, or is under the guardianship, of a person who is or was formerly in a relationship with the other under paragraph (a), (b) or (c) (regardless of age); or (f) 1 is a child and the other is a person who acts in loco parentis in relation to the child; or (g) 1 is a child who normally or regularly resides or stays with the other; or (h) they are brothers or sisters or brother and sister; or (i) they are otherwise related to each other by or through blood, marriage, a domestic partnership or adoption; or (j) they are related according to Aboriginal or Torres Strait Islander kinship rules or are both members of some other culturally recognised family group; or (k) 1 is the carer (within the meaning of the Carers Recognition Act 2005) of the other. (9) An act of abuse may be committed by a defendant against a person with whom the defendant is not, and was not formerly, in a relationship (including in circumstances where the defendant imagines such a relationship) and such an act of abuse is referred to in this Act as an act of non‑domestic abuse. 9—Priority for certain interventions Proceedings relating to intervention against domestic abuse and proceedings brought by a bail authority under section 23A of the Bail Act 1985 must, as far as practicable, be dealt with as a matter of priority. 10—Principles for intervention against abuse (1) The following must be recognised and taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order: (a) abuse occurs in all areas of society, regardless of socio‑economic status, health, age, culture, gender, sexuality, ability, ethnicity and religion; (b) abuse may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of behaviour; (c) it is of primary importance to prevent abuse and to prevent children from being exposed to the effects of abuse; (d) as far as is practicable, intervention should be designed— (i) to encourage defendants who it is suspected will, without intervention, commit abuse to accept responsibility and take steps to avoid committing abuse; and (ii) to minimise disruption to protected persons and any child living with a protected person and to maintain social connections and support for protected persons; and (iii) to ensure continuity and stability in the care of any child living with a protected person; and (iv) to allow education, training and employment of a protected person and any child living with a protected person, and arrangements for the care of such a child, to continue without interruption; and (v) if the defendant is a child— (A) to ensure the child has appropriate accommodation, care and supervision; and (B) to ensure the child has access to appropriate educational and health services; and (C) to allow the education, training and employment of the child to continue without interruption. (2) The following must also be taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order: (a) any relevant Family Law Act order or State child protection order of which the issuing authority has been informed; (b) how the intervention order would be likely to affect contact (in accordance with a relevant Family Law Act order or State child protection order or otherwise) between— (i) the protected person or the defendant; and (ii) any child of, or in the care of, either of those persons; (c) any relevant agreement or order for the division of property under the Family Law Act 1975 of the Commonwealth, or the Domestic Partners Property Act 1996 or a corresponding law of another jurisdiction, of which the issuing authority has been informed; (d) if considering whether to prohibit the defendant from taking possession of property or to require the defendant to return property to a protected person or to allow a protected person to recover or have access to or make use of property—the income, assets and liabilities of the defendant and the protected person (to the extent that the issuing authority has been informed of those matters); (e) any other legal proceedings between the defendant and protected person of which the issuing authority has been informed. (3) Before issuing an intervention order the issuing authority must consider whether, if the whereabouts of a person proposed to be protected by the order are not known to the defendant, the issuing of the order would be counterproductive. (4) An issuing authority may take into account any other factor the authority considers relevant in the circumstances. 11—Ongoing effect of intervention order (1) An intervention order is ongoing and continues in force (subject to any variation or substitution of the order under this Act) until it is revoked. (2) Consequently, an issuing authority may not fix a date for the expiry of an intervention order or otherwise limit the duration of an intervention order. 12—Terms of intervention order—general (1) An intervention order may do any 1 or more of the following: (a) prohibit the defendant from being on, or within the vicinity of, premises at which a protected person resides or works; (b) prohibit the defendant from being on, or within the vicinity of, specified premises frequented by a protected person; (c) prohibit the defendant from being in a specified locality; (d) prohibit the defendant from approaching within a specified distance of a protected person; (e) prohibit the defendant from contacting, harassing, threatening or intimidating a protected person or any other person at a place where the protected person resides or works; (f) prohibit the defendant from damaging specified property; (g) prohibit the defendant from taking possession of specified personal property reasonably needed by a protected person; (h) prohibit the defendant from causing or allowing another person to engage in the conduct referred to in any of paragraphs (e) to (g); (i) require the defendant to surrender specified weapons or articles that have been used, or that there is some reason to believe might be used, by the defendant to commit an act of abuse against a protected person; (j) require the defendant to return specified personal property to a protected person; (k) require the defendant to allow a protected person to recover or have access to or make use of specified personal property and to allow the person to be accompanied by a police officer or other specified person while doing so; (l) impose any other requirement on the defendant to take, or to refrain from taking, specified action. (2) An intervention order may specify— (a) conditions under which a prohibition imposed by the order does not apply; and (b) conditions that must be complied with in relation to a requirement imposed by the order. (3) If an intervention order is designed to prevent a form of abuse involving the use or threatened use of particular weapons or articles, the terms of the order should, as far as is practicable, include surrender of the weapons or articles or other measures designed to minimise the risk of the defendant using or threatening to use the weapons or articles to commit an act of abuse against the protected person. (4) If an interim intervention order requires the surrender of specified weapons or articles, the order must provide for their safe keeping until the determination of proceedings under section 23, but otherwise an intervention order may specify how surrendered weapons or articles are to be dealt with or disposed of. (5) An intervention order may be issued against the defendant in relation to premises or property despite the fact that the defendant has a legal or equitable interest in the premises or property. (6) If an intervention order prohibits the defendant from being on, or within the vicinity of, premises at which a protected person resides— (a) the protected person may, despite any other Act or law, change any external door or window lock of the premises (and, if the premises are rented and a lock is so changed, the protected person must give a key to the lock to the landlord, except if the defendant is the landlord); and (b) if the defendant is a party to a tenancy agreement for the premises—the defendant may not, despite any other Act or law, take any action to terminate the tenancy agreement before the determination of the proceedings under section 23. 13—Terms of intervention order—intervention programs (1) An intervention order may require the defendant to undergo an assessment by the intervention program manager to determine— (a) a form of intervention program that is appropriate for the defendant; and (b) the defendant's eligibility for the services included on the program. (2) An intervention order issued by the Court may require the defendant to undertake an intervention program if the intervention program manager has advised the Court that— (a) the defendant is eligible for the services to be included on the program in accordance with applicable eligibility criteria (if any); and (b) those services are available for the defendant at a suitable time and place. (3) If an intervention order contains a requirement under this section, the defendant must comply with requirements regulating his or her participation in the assessment or intervention program notified from time to time by the defendant's case manager. (4) The Court must endeavour to ensure that the defendant understands that— (a) failure to comply with a requirement referred to in subsection (3) constitutes a contravention of the term of the intervention order imposed under this section; and (b) the Court may, if the person is found guilty of any such contravention, order the defendant to make a payment of not more than the prescribed amount toward the cost of any intervention program the defendant may be required to undertake in accordance with the intervention order, (but failure to comply with this subsection will not make an order under this section invalid). 14—Terms of intervention order—firearms (1) Subject to this section, an intervention order must include the following terms (the firearms terms): (a) any firearm, ammunition or part of a firearm in the possession of the defendant and any licence or permit held by the defendant authorising possession of a firearm must be surrendered to the Registrar of Firearms; (b) while an intervention order remains in force against the defendant— (i) any licence or permit held by the defendant authorising possession of a firearm is suspended; and (ii) the defendant is disqualified from holding or obtaining a licence or permit authorising possession of a firearm; and (iii) the defendant is prohibited from possessing a firearm, ammunition or part of a firearm in the course of his or her employment. (2) The Court need not include the firearms terms in a final intervention order if satisfied that the defendant has never been guilty of violent or intimidatory conduct and needs to have a firearm for purposes related to earning a livelihood. 15—Terms of intervention order—date after which defendant may apply for variation or revocation (1) The Court may, when issuing or varying a final intervention order, include a term fixing a date after which the defendant may apply for variation (or further variation) or revocation of the order. (2) The date must fall at least 12 months after the date of issue or variation of the order. (3) If the Court does not include in a final intervention order a term under subsection (1), the order will be taken to include a term fixing the date falling 12 months after the date of issue or variation of the order as the date after which the defendant may apply for variation (or further variation) or revocation of the order. 15A—Declaration that intervention order addresses domestic violence concern (1) Whenever an issuing authority issues an intervention order, the issuing authority must decide whether the order addresses a domestic violence concern. (2) If the order does address a domestic violence concern, the issuing authority must declare the order to be an order that addresses a domestic violence concern. (3) The declaration must be included in the order. (4) An intervention order will be taken to address a domestic violence concern for the purposes of Part 3A if the order is made because the defendant has committed, or because it is feared the defendant will commit, an act of domestic abuse. 16—Inconsistent Family Law Act or State child protection orders (1) An intervention order is invalid to the extent of any inconsistency with a Family Law Act order of a kind referred to in section 68R of the Family Law Act 1975 of the Commonwealth (but the Court may resolve the inconsistency by exercising its power to revive, vary, discharge or suspend the Family Law Act order under that section). (2) An intervention order prevails over a State child protection order (being an order under section 38 of the Children's Protection Act 1993 or a corresponding order made under section 53 of the Children and Young People (Safety) Act 2017) to the extent of any inconsistency (but the Youth Court may resolve the inconsistency by varying or revoking the order on application under the Children and Young People (Safety) Act 2017). 17—Explanation for defendant and protected persons An issuing authority must endeavour to ensure that the defendant and protected persons understand— (a) the terms and effect of an intervention order and any associated order, including, in the case of an interim intervention order, that the order acts as a summons; and (b) if relevant, the effect of section 16; and (c) that a protected person cannot give permission for contravention of an order, (but failure to do so will not make an order invalid). Division 2—Police orders 18—Interim intervention order issued by police (1) Subject to subsection (2), a police officer may issue an interim intervention order against a defendant if it appears to the police officer that there are grounds for issuing the order and the defendant is present before the police officer or in custody. (2) If the police officer issuing the order is not of or above the rank of sergeant, the officer must, before issuing the order, obtain the authorisation (either orally or in writing) of a police officer of or above that rank. (3) An interim intervention order issued by a police officer must— (a) be in a form approved by the Commissioner of Police; and (b) identify the defendant and the persons protected by the order; and (c) specify the prohibitions and requirements imposed by the order; and (d) require the defendant to appear before the Court at a specified time and place (within 8 days after the date of the order or, if the Court will not be sitting at the place within that period, within 2 days after the Court next commences sitting at the place). (4) An interim intervention order issued by a police officer comes into force against the defendant when served on the defendant personally. (5) On an interim intervention order issued by a police officer being served on the defendant, the police officer issuing the order will be taken to have made an application to the Court for an intervention order and the defendant will be taken to have been issued a summons to appear before the Court as specified in the order for the purposes of the hearing and determination of the application under section 23. (6) The Commissioner of Police must— (a) give a copy of an interim intervention order issued by a police officer to each person protected by the order; and (b) either— (i) notify the Principal Registrar in writing of the prescribed details of the order; or (ii) give a copy of the order to the Principal Registrar. (7) A person against whom an interim intervention order is issued by a police officer must notify the Commissioner of Police in writing of an address for service. (7a) A person who is required under subsection (7) to notify the Commissioner of Police of an address for service— (a) who fails to provide the address within 7 days after being so requested; or (b) who provides an address that is false, is guilty of an offence. Maximum penalty: $750. Expiation fee: $105. (8) The Commissioner of Police must notify the Principal Registrar of any address for service provided under subsection (7). (9) The Principal Registrar must notify the relevant public sector agencies in writing of the prescribed details of interim intervention orders issued by police officers. 19—Revocation of interim intervention order by Commissioner of Police (1) The Commissioner of Police may revoke an interim intervention order issued by a police officer by written notice served on the defendant personally or by post at the address for service provided by the defendant under this Act. (2) The Commissioner of Police must— (a) give a copy of a notice of revocation of an interim intervention order issued by a police officer to each person protected by the order; and (b) notify the Principal Registrar that the order has been revoked. (3) The Principal Registrar must notify the relevant public sector agencies of the revocation of interim intervention orders by the Commissioner of Police. Division 3—Court orders 20—Application to Court for intervention order (1) The following persons may make an application to the Court for an intervention order: (a) a police officer; (b) a person against whom it is alleged the defendant may commit an act of abuse or a suitable representative of such a person given permission to apply by the Court; (c) a child who it is alleged may hear or witness, or otherwise be exposed to the effects of, an act of abuse committed by the defendant against a person; (d) if the defendant or a person proposed to be protected by the order is a child and there is a State child protection order in force in respect of the child—the Minister responsible for the administration of the Children and Young People (Safety) Act 2017. (2) If the person entitled to apply is a child, the application may be made— (a) by the child with the permission of the Court, if the child has attained the age of 14 years; or (b) on behalf of the child by— (i) a parent or guardian of the child; or (ii) a person with whom the child normally or regularly resides; or (iii) some other suitable representative of the child given permission to apply by the Court. (3) The applicant must inform the Court of any relevant Family Law Act order, State child protection order or agreement or order for the division of property under the Family Law Act 1975 of the Commonwealth, or the Domestic Partners Property Act 1996 or a corresponding law of another jurisdiction, any pending application for such an order, and any other legal proceedings between a person proposed to be protected by the order and the defendant, of which the applicant is aware (but an intervention order is not invalid merely because the applicant fails to so inform the Court). (4) A single application relating to the same defendant may be made by any number of persons. 21—Preliminary hearing and issue of interim intervention order (1) On an application for an intervention order in circumstances in which an interim intervention order has not been issued by a police officer, the Court must hold a preliminary hearing as soon as practicable and without summoning the defendant to appear. (2) If the application is made by telephone or other electronic means in accordance with rules of Court— (a) the preliminary hearing may occur by oral questioning of the applicant and any other available witness or by other means contemplated by the rules; and (b) if the Court is not satisfied that it is an appropriate case for completing the preliminary hearing without requiring the personal attendance of the applicant, the Court may adjourn the hearing to a time and place fixed by the Court and inform the applicant of the time and place so fixed. (3) At the preliminary hearing, the Court may— (a) issue an interim intervention order against a defendant if it appears to the Court that there are grounds for issuing the order; or (b) dismiss the application on the grounds that the application is frivolous, vexatious, without substance or has no reasonable prospect of success or on any other ground considered sufficient by the Court. (4) If the applicant alleges non‑domestic abuse and is a person other than a police officer, the Court must, in determining whether to exercise the discretion to dismiss the application, take into account— (a) whether it might be appropriate and practicable for the parties to attempt to resolve the matter through mediation or by some other means; and (b) whether the application is in the nature of a cross application; and (c) any other matters that the Court considers relevant. (4a) If the applicant is a police officer— (a) the Court is not bound by the rules of evidence but may inform itself as it thinks fit; and (b) the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. (5) There is a presumption against exercising the discretion to dismiss the application if the applicant alleges an offence involving personal violence or an offence of stalking under section 19AA of the Criminal Law Consolidation Act 1935. (6) The Court may issue an interim intervention order on the basis of evidence received in the form of an affidavit if the application is made by a police officer or a person introduced by a police officer but, in that case— (a) the deponent must, if the defendant so requires, appear personally at the proceedings for the determination of the application to give oral evidence of the matters referred to in the affidavit; and (b) if the deponent does not appear personally to give evidence as so required—the Court may not rely on the evidence contained in the affidavit for the purpose of determining the application. (7) An interim intervention order issued by the Court must— (a) identify the defendant and the persons protected by the order; and (b) specify the prohibitions and requirements imposed by the order; and (c) require the defendant to appear before the Court at a specified time and place (within 8 days after the date of the order or, if the Court will not be sitting at the place within that period, within 2 days after the Court next commences sitting at the place). (8) An interim intervention order issued by the Court comes into force against the defendant when served on the defendant in accordance with this section. (8a) For the purposes of subsection (8), an interim intervention order is served on the defendant if— (a) the order is served on the defendant personally; or (b) the order is served on the defendant in some other manner authorised by the Court; or (c) the defendant is present in the Court when the order is made. (9) On an interim intervention order issued by the Court being served on the defendant, the defendant will be taken to have been issued a summons to appear before the Court as specified in the order for the purposes of proceedings to determine the application for a final intervention order under section 23. (10) The Principal Registrar must— (a) give a copy of an interim intervention order issued by the Court to— (i) each person protected by the order; and (ii) if the applicant is not a police officer or a person protected by the order—the applicant; and (b) either— (i) notify the Commissioner of Police in writing of the prescribed details of the order; or (ii) give a copy of the order to the Commissioner of Police. (11) The Principal Registrar must notify the relevant public sector agencies in writing of the prescribed details of interim intervention orders issued by the Court. (12) A person against whom an interim intervention order is issued by the Court must notify the Principal Registrar in writing of an address for service. (13) If a hearing is adjourned under this section, the Court need not be constituted at the adjourned hearing of the same judicial officer as ordered the adjournment. 22—Adjournments (1) The Court may, from time to time without requiring the attendance of any party, adjourn the hearing of an application for an intervention order at which a defendant is required by an interim intervention order to appear to a later date if satisfied that the interim intervention order has not been served or that there is other adequate reason for the adjournment. (2) The date fixed for an adjourned hearing must be within 8 days after the date on which the adjournment is ordered, unless the Court is satisfied— (a) that a later date is required to enable the interim intervention order to be served; or (b) that there is other adequate reason for fixing a later date. (3) If a hearing is adjourned under this section, the Court need not be constituted at the adjourned hearing of the same judicial officer as ordered the adjournment. 23—Determination of application for intervention order (1) Subject to this section, on the hearing of an application for a final intervention order, the Court may— (a) confirm the interim intervention order issued against the defendant as a final intervention order; or (b) issue a final intervention order in substitution for an interim intervention order issued against the defendant; or (c) dismiss the application and revoke the interim intervention order issued against the defendant. (1a) If the Court determines that it is appropriate to confirm an interim intervention order as a final intervention order or to issue a final intervention order in substitution for an interim intervention order under subsection (1) and the defendant, or a person protected by the order, is a child or the parent of a child, the Court— (a) must make the following inquiries: (i) whether there is any relevant Family Law Act order or State child protection order; (ii) how the final intervention order would be likely to affect contact (in accordance with a relevant Family Law Act order or State child protection order or otherwise) between— (A) the protected person or the defendant; and (B) any child of, or in the care of, either of those persons; and (b) must take such steps as the Court considers necessary so as to avoid inconsistency between the order and any Family Law Act order or State child protection order of which the Court has knowledge (whether on its own inquiry or having been so informed). (2) An interim intervention order issued against a defendant may be confirmed as a final intervention order, or a final intervention order may be issued in substitution for an interim intervention order issued against a defendant, in the absence of the defendant if the defendant failed to appear at the hearing of the application as required by the interim intervention order or by conditions of bail. (3) If a defendant disputes some or all of the grounds on which a final intervention order is sought but consents to the order, the Court may confirm the interim intervention order issued against the defendant as a final intervention order, or issue a final intervention order in substitution for the interim intervention order issued against the defendant, without receiving any further submissions or evidence as to the grounds. (4) If an interim intervention order is confirmed, the order continues in force against the defendant as a final intervention order without any further requirement for service. (5) A final intervention order that is issued in substitution for an interim intervention order comes into force against the defendant when served on the defendant in accordance with this section (and until the order is so served the interim intervention order continues in force against the defendant). (5a) For the purposes of subsection (5), a final intervention order is served on the defendant if— (a) the order is served on the defendant personally; or (b) the order is served on the defendant in some other manner authorised by the Court; or (c) the defendant is present in the Court when the order is made. (6) If an interim intervention order is revoked, the Principal Registrar must serve written notice of the revocation on the defendant personally or by post at the address for service provided by the defendant under this Act or in some other manner authorised by the Court. (7) The Principal Registrar must— (a) give a copy of a final intervention order, or notice of revocation of an interim intervention order, to— (i) each person protected by the order; and (ii) if the applicant is not a police officer or a person protected by the order—the applicant; and (b) either— (i) notify the Commissioner of Police in writing— (A) of the prescribed details of a final intervention order; or (B) that an interim intervention order (whether issued by a police officer or the Court) has been revoked; or (ii) give a copy of the final intervention order, or notice of revocation of an interim intervention order, to the Commissioner of Police. (8) The Principal Registrar must notify the relevant public sector agencies in writing of the prescribed details of final intervention orders issued by the Court and of the revocation of interim intervention orders by the Court. 24—Problem gambling order (1) If the Court confirms an interim intervention order as a final intervention order against a defendant or issues a final intervention order against a defendant in substitution for an interim intervention order, the Court may make an order (a problem gambling order) that the defendant is subject to a problem gambling family protection order under the Problem Gambling Family Protection Orders Act 2004 imposing specified requirements or orders of a kind that could be imposed by the Commissioner under that Act. (2) A problem gambling order must be served on the defendant in accordance with this section and is not binding on the defendant until so served. (2a) For the purposes of subsection (2), a problem gambling order is served on the defendant if— (a) the order is served on the defendant personally; or (b) the order is served on the defendant in some other manner authorised by the Court; or (c) the defendant is present in the Court when the order is made. (3) If the problem gambling family protection order to which the defendant is subject includes an attachment order (within the meaning of the Problem Gambling Family Protection Orders Act 2004), the attachment order must be served on the third person specified in the order personally or in some other manner authorised by the Court and is not binding on the third person until so served. (4) A problem gambling order continues in force (subject to any variation of the order under this Act) until it is revoked. (5) If the Court orders that the defendant is subject to a problem gambling family protection order, the Principal Registrar must— (a) give a copy of the order to— (i) each person for whose benefit the order is made; and (ii) if the applicant for the order is not a police officer or a person protected by the order—the applicant; and (b) either— (i) notify a person listed below in writing of the prescribed details of the order: (A) the Commissioner; (B) the Commissioner of Police; (C) the proprietor or licensee of any premises specified in the order; or (ii) give a copy of the order to a person referred to in subparagraph (i). 25—Tenancy order (1) If— (a) the Court confirms an interim intervention order as a final intervention order against a defendant or issues a final intervention order against a defendant in substitution for an interim intervention order; and (b) the final intervention order prohibits the defendant from being on premises at which a protected person resides; and (c) the defendant and protected person previously resided together on the premises; and (d) the premises are subject to a tenancy agreement to which the defendant is a party, the Court may make an order (a tenancy order) that the defendant will be taken to have assigned the defendant's interest in the tenancy agreement to a specified person or persons with the landlord's consent. (2) However, a tenancy order may only be made if the Court is satisfied that the assignee consents to the assignment and— (a) in a case where— (i) the landlord is a community housing provider registered under the Community Housing Providers National Law; and (ii) the premises constitute community housing within the meaning of that Law, the assignee meets the eligibility requirements for such community housing and any membership or other requirements of the landlord associated with occupation of those premises; and (b) in a case where the landlord is the South Australian Housing Trust or a subsidiary of the South Australian Housing Trust—the assignee meets the eligibility requirements of the Trust; and (c) in any case—the assignee could reasonably be expected to comply with the obligations under the tenancy agreement, (so that it would be unreasonable for the landlord to withhold consent to the assignment). (3) A tenancy order takes effect on the day on which it is made or on such later day as is specified in the order. (4) If a tenancy order is made— (a) the effect of the assignment is that the assignee is substituted for the assignor as tenant under the tenancy agreement (but the assignor remains responsible for liabilities that accrued before the date of the assignment); and (b) the assignee is liable to indemnify the assignor for liabilities incurred by the assignor to the landlord because of a breach of the tenancy agreement by the assignee; and (c) an amount paid by the assignor and held by way of security for the performance of obligations under the tenancy agreement will (unless the parties agree to the contrary) continue to be held as security for the proper performance by the assignee of obligations under the tenancy agreement. (5) The Registrar must give a copy of a tenancy order to— (a) the protected person; and (b) the defendant; and (c) the landlord; and (d) if the assignee is not the protected person—the assignee; and (e) the Registrar of the South Australian Civil and Administrative Tribunal. Division 4—Variation or revocation of orders 26—Intervention orders (1) The Court may vary or revoke an intervention order on application by— (a) a police officer; or (b) a person protected by the order or a suitable representative of such a person given permission to apply by the Court; or (c) if the defendant or a person protected by the order is a child and there is a State child protection order (being an order under section 38 of the Children's Protection Act 1993 or a corresponding order made under section 53 of the Children and Young People (Safety) Act 2017) in force in respect of the child—the Minister responsible for the administration of that Act; or (d) the defendant. (2) If the person entitled to apply is a child, the application may be made— (a) by the child with the permission of the Court, if the child has attained the age of 14 years; or (b) on behalf of the child by— (i) a parent or guardian of the child; or (ii) a person with whom the child normally or regularly resides; or (iii) any other suitable representative of the child with the permission of the Court. (3) An application for variation or revocation of a final intervention order may only be made by the defendant after the date fixed by the order. (4) On an application for variation or revocation of a final intervention order by the defendant, the Court may, without receiving submissions or evidence from the protected person, dismiss the application— (a) if satisfied that the application is frivolous or vexatious; or (b) if not satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied. (5) The Court must, before varying or revoking an intervention order under this section— (a) allow the Commissioner of Police, the defendant and each person protected by the order a reasonable opportunity to be heard on the matter; and (b) have regard to the same matters that the Court is required to have regard to in considering whether or not to make an intervention order and in considering the terms of an intervention order. (6) The Court may not vary a final intervention order by removing the firearms terms unless satisfied that the defendant has never been guilty of violent or intimidatory conduct and needs to have a firearm for purposes related to earning a livelihood. (7) If an intervention order is varied, the order in its amended form must be served on the defendant in accordance with this section and until so served— (a) the variation is not binding on the defendant; but (b) the order as in force prior to the variation continues to be binding on the defendant. (7a) For the purposes of subsection (7), an order in its amended form is served on the defendant if— (a) the order is served on the defendant personally; or (b) the order is served on the defendant in some other manner authorised by the Court; or (c) the defendant is present in the Court when the order is made. (8) If an intervention order is revoked, the Principal Registrar must serve written notice of the revocation on the defendant personally or by post at the address for service provided by the defendant under this Act or in some other manner authorised by the Court. (9) If an intervention order is varied or revoked, the Principal Registrar must— (a) give a copy of the order as varied by the Court, or notice of revocation of the order, to— (i) each person protected by the order; and (ii) if the applicant is not a police officer or a person protected by the order—the applicant; and (b) either— (i) notify the Commissioner of Police in writing of the prescribed details of the order as varied by the Court, or that the order has been revoked; or (ii) give a copy of the order as varied by the Court, or notice of revocation of the order, to the Commissioner of Police. (10) The Principal Registrar must notify the relevant public sector agencies in writing of— (a) the prescribed details of intervention orders varied by the Court; or (b) the revocation of intervention orders by the Court. 26A—Interim variation where application made by police (1) If— (a) an application for variation of a final intervention order is made by a police officer under section 26; and (b) the applicant requests that the Court make an interim variation of the intervention order, pending final determination of the application, the Court must hold a preliminary hearing as soon as practicable and without summoning the defendant to appear. (2) If the application is made by telephone or other electronic means in accordance with rules of Court— (a) the preliminary hearing may occur by oral questioning of the applicant and any other available witness or by other means contemplated by the rules; and (b) if the Court is not satisfied that it is an appropriate case for completing the preliminary hearing without requiring the personal attendance of the applicant, the Court may adjourn the hearing to a time and place fixed by the Court and inform the applicant of the time and place so fixed. (3) At the preliminary hearing, the Court may— (a) issue an interim variation of the intervention order if it appears to the Court that there are grounds for issuing the variation; or (b) determine that the application should be dealt with under section 26 without the issuing of any interim variation order; or (c) dismiss the application (on any ground considered sufficient by the Court). (4) The Court may issue an interim variation of the intervention order on the basis of evidence received in the form of an affidavit but, in that case— (a) the deponent must, if the defendant so requires, appear personally to give oral evidence of the matters referred to in the affidavit at any hearing held for the purpose of finally determining the application for variation of the intervention order; and (b) if the deponent does not appear personally to give evidence as so required—the Court may not rely on the evidence contained in the affidavit for the purpose of finally determining the application. (5) An interim variation of an intervention order issued by the Court must require the defendant to appear before the Court at a specified time and place (within 8 days after the date of the order or, if the Court will not be sitting at the place within that period, within 2 days after the Court next commences sitting at the place). (6) An interim variation of an intervention order issued by the Court comes into force against the defendant when served on the defendant in accordance with this section. (7) For the purposes of subsection (6), an interim variation of an intervention order is served on the defendant if— (a) the order is served on the defendant personally; or (b) the order is served on the defendant in some other manner authorised by the Court; or (c) the defendant is present in the Court when the order is made. (8) On an interim variation of an intervention order issued by the Court being served on the defendant, the defendant will be taken to have been issued a summons to appear before the Court as specified in the order for the purposes of proceedings to finally determine the application for variation of the final intervention order under section 26. (9) The Principal Registrar must— (a) give a copy of an interim variation of an intervention order issued by the Court to each person protected by the order; and (b) either— (i) notify the Commissioner of Police in writing of the prescribed details of the order; or (ii) give a copy of the order to the Commissioner of Police. (10) The Principal Registrar must notify the relevant public sector agencies in writing of the prescribed details of an interim variation of an intervention order issued by the Court. (11) If a hearing is adjourned under this section, the Court need not be constituted at the adjourned hearing of the same judicial officer as ordered the adjournment. 27—Problem gambling orders (1) The Court may vary or revoke a problem gambling order— (a) on revoking the intervention order with which it is associated; or (b) on application by a defendant subject to the intervention order with which it is associated or a person for whose benefit the problem gambling family protection order to which the defendant is subject under the order applies. (2) If on revoking an intervention order the Court does not revoke an associated problem gambling order, the problem gambling family protection order to which the defendant is subject under the order continues in force under the Problem Gambling Family Protection Orders Act 2004 as if it had been issued under that Act and, consequently, is subject to variation or revocation by the Commissioner under that Act. Division 5—Evidentiary matters 28—Burden of proof In proceedings under this Part, the Court is to decide questions of fact on the balance of probabilities. 28A—Use of recorded evidence where application made by police (1) This section applies in addition to, and does not derogate from, any other power of the Court to receive evidence or to determine the form in which evidence may be received (including evidence in the form of a recording). (2) In any proceedings in which a police officer has applied for the making, or variation, of an intervention order— (a) the evidence of a relevant person may be admitted in the form of a recording made by a police officer if the Court is satisfied that the interests of justice require the admission of the evidence; and (b) if evidence of a relevant person is admitted in the form of a recording pursuant to this section, the relevant person cannot be further examined, cross-examined or re-examined on the evidence so admitted without the permission of the Court. (3) Without limiting section 42, the regulations may— (a) prescribe additional requirements in relation to recordings under this section; and (b) require that additional material be provided to the Court with a recording in certain circumstances (such as a transcript or translation); and (c) prescribe requirements in relation to access to, or service of, recordings and other material; and (d) prescribe requirements in relation to custody of recordings; and (e) impose restrictions on copying or distribution of recordings. (4) In this section— recording means an audio record or an audio visual record; relevant person—a person is a relevant person in proceedings on an application for the making, or variation, of an intervention order if the intervention order is to be, or has been, issued for the protection of the person. 29—Special arrangements for evidence and cross‑examination (1) The Court may order that special arrangements be made for taking the evidence of a person against whom it is alleged the defendant has committed or might commit an act of abuse or a child who it is alleged has been or might be exposed to the effects of an act of abuse committed by the defendant aga