Page 2832 - Week 09 - Tuesday, 11 October 2022
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Under the new special interim order scheme in the Personal Violence Act 2016, the court may make a special interim protection order if there are ongoing related criminal charges. When a specific interim order has been issued, the application for a final order cannot be finalised until all related criminal charges are finalised.
A special interim order may be beneficial to the court, respondent and applicant. Special interim orders would allow police investigations into related charges to take their course and ensure that the applicant for personal and workplace protection orders and vulnerable members of the community are protected from further violence, threats, intimidation and abuse. In addition, special interim orders minimise the risk of self-incrimination of the respondent or unnecessary traumatisation for the applicant. Special interim orders also increase efficiency for the court and parties, as the court finalising the related charges may also decide the application for the final protection order.
The ACT government seeks to strengthen our commitment to protecting the safety of victim-survivors in the ACT community. There are crucial, life-threatening circumstances where a victim-survivor of sexual assault may need to apply for a protection order. The amendment facilitates the physical protection and wellbeing of an applicant by allowing a personal protection order and workplace protection order to be in force until the finalisation of related criminal charges.
I note that the bill does not attempt to change the grounds for granting interim protection orders. Furthermore, all applications will be dealt with on their merits, by application to the court. The respondent’s rights are also unchanged, and the respondent can apply for the review of a protection order or to amend its conditions. This helps to ensure that any limitations on the respondent’s human rights are proportionate, while also preventing any arbitrary extension of protection orders.
The bill adopts recommendation 23(i) of the report and introduces an amendment to create a neutral presumption of bail for certain sexual offences that currently have a presumption in favour of bail. The bill provides that the presumption of bail does not apply to a person charged with an offence contrary to the following sections of the Crimes Act 1900: section 55(2), sexual intercourse with a young person under the age of 16 years; section 55A, sexual intercourse with a young person under special care; or section 56, persistent sexual abuse of a child or young person under special care.
Schedule 1 of the Bail Act 1992 already sets out a list of offences, including similar and equally serious sexual offences in the Crimes Act 1900 to which the presumption for bail does not apply. The amendment brings three offences in line with these sexual offences. I note that the amendment does not create a presumption against bail but creates a neutral presumption so that there is neither a presumption for nor against bail. As such, the decision-maker is not required to be satisfied of the existence of special or exceptional circumstances in favour of granting bail to an accused. It also does not seek to curb the existing discretion held by the decision-maker in making bail determinations.
The amendment ensures that victim-survivors of sexual offences are afforded procedural justice and improved criminal justice outcomes. The amendment also
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