In South Australia, the Domestic Violence Act 1994 provides provisions for restraining orders in cases of domestic violence. As a result of the Intervention Orders (Prevention of Abuse) Act 2009, police and courts were given greater authority to prevent and address domestic abuse in 2009. As part of the Act, people are protected against abuse by restrictions on the perpetrator’s actions and the requirement that the perpetrator work towards rehabilitation.
What is an intervention order?
An intervention order (previously known as a restraining order) is a court order which prohibits a person (the respondent) from acting in a particular manner towards a protected individual (or persons). Additionally, they can direct the respondent to comply with certain directions and restrain their behaviour. Shortly, intervention orders may include any necessary measures to protect the protected individual or persons.
It is important to note that intervention orders are civil orders – meaning that they are not criminal charges, although they may be subject to criminal penalties if they are breached.
The Police may issue an interim intervention order or can make and confirm the order in the Magistrates Court. If the police issue an interim order, it too will have to be reviewed by the Magistrates Court. Although intervention orders are civil law orders, jurisdiction to hear and determine them lies with the criminal division of the Magistrates Court [Uniform Special Statutory Rules 2022 (SA) r 6.1].
It is the purpose of an intervention order to protect anyone who is suspected of being abused by the respondent, including any child who may be exposed to the consequences of the abuse committed by the respondent against another individual.
Both domestic and non-domestic abuse situations are covered by the Intervention Orders (Prevention of Abuse) Act 2009
Breaches of an intervention order
When an individual violates an intervention order, except for an order related to an intervention program, he or she is guilty of an offense with a maximum sentence of three years in prison for a basic offense and five years in prison for an aggravated offense [Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2)].
In the event that the violation involved physical violence or a threat of physical violence, or is the second or subsequent violation in a five-year period, the maximum penalty is seven years’ imprisonment for a basic offence and ten years for an aggravated offence [section 31(2aa)].
The person who violates a term of an intervention order in relation to an intervention program is guilty of an offence punishable by a fine up to $2,000 (expiation fee: $315) [s 31(1)].
Providing that the protected person’s conduct does not involve any person protected by an intervention order, the person will not be guilty of aiding, abetting, counselling or procuring the contravention of an intervention order [section 31(3)], as long as the conduct does not involve anyone who is protected by an intervention order. It differs from the situation under the old domestic violence law.
A police officer may arrest and detain a person if the officer suspects the person has violated an intervention order [section 36]. Immediately after arrest, the person should appear before the Court, and not more than 24 hours later (excluding weekends and public holidays).
To avoid the possibility of being charged with contravention of an intervention order, it is wise to go to court to contest the issuance of the intervention order. A lawyer can help you do that.
If you are charged with contravention, most defences centre on disputing the evidence that you disobeyed the order. You might also have a defence if the order is ambiguous and fails to put you on notice that your alleged conduct violated the order. What constitutes “harassment,” for instance, is often a matter of opinion. To determine your best defence to the charge, you should consult a lawyer.