New Powers For Police - On The Spot Protection Orders
Article written by Colin Abernethy
On 1 July 2010 the Police will have new powers to issue “Police Safety Orders”. A person against whom the Order is issued (“the Respondent”) must immediately surrender to a Constable any weapon in his or her possession or control, together with any firearms licence and must vacate any land or building occupied by a “person at risk”, whether or not he or she has a legal or equitable interest in the land or building. The Respondent will have to leave the residence even if they own it, or it is a joint family home or a flat in which they and or the other party resides.
The duration of the order is within the issuing Constable’s discretion however that period must not exceed 5 days.
In addition to suspending any firearms licence the Respondent might have, a Police Safety Order also suspends any Parenting Order between the person at risk and the Respondent in respect of any child residing with the person at risk.
Another major effect is to impose comprehensive restrictions upon the Respondent’s behaviour towards a person at risk. A person at risk can be either the complainant or any child residing with the complainant. Once an Order is issued, as well as vacating the property, the Respondent must not physically or sexually abuse or threaten to abuse a person at risk, damage or threaten to damage such a persons property or in any way harass them, including watching, loitering or following a person at risk to their place of residence, business or any other place that the person frequents. There is also a complete prohibition against any contact between the Respondent and the person at risk which includes any form of electronic messaging (except such communication as is reasonably necessary in an emergency).
Whilst the scope for a Police Officer to justify an order is very wide, an order can only be made by a “qualified Constable”, that is, a Police Officer holding the rank of Sergeant or above. As a consequence junior Constables will be required to request authorisation from a more senior Officer before issuing an Order. The new law provides for a period of up to 2 hours in which a Respondent may be detained whilst a junior Officer seeks authorisation from a Sergeant. This detention is valid even if the Order is not eventually issued and its breach is an offence punishable by a fine of up to $500.00. In terms of the Order itself, if the Respondent refuses or fails to comply with its terms, the Constable may take the person into custody or execute a warrant for the person’s arrest issued by a District Court Judge. If an Order is not complied with it is also likely that a Temporary Protection Order will be imposed upon the Respondent provided the person whom the Order is to protect does not object.
A qualified Constable may issue a Police Safety Order against a person who is or has been in a domestic relationship with another person if the Constable does not arrest that person for an offence and has reasonable grounds to believe that an issue of an Order is necessary to ensure the safety of a person at risk. This is a significant development in New Zealand’s domestic violence legislation and provides the Police with the ability to ensure the immediate safety of victims of domestic violence by removing the alleged violent person from the home. The Police will be able to issue the orders in situations where there is an insufficient basis to arrest, but where they believe there is a likelihood of domestic violence occurring and that an Order is necessary for the safety of the victim.
There are concerns with these new Police powers. Unlike comparable Australian legislation, there is no appeal mechanism to challenge the grant of a Police Safety Order. In effect there is no natural justice being offered to the Respondent when a Police Safety Order is issued and it seems any arguments against the issuing of a Police Safety Order will only be taken into account if the Constable considers those arguments “relevant” or if hardship may be caused if the order is issued. The Respondent will only have the opportunity to argue his or her defence at the time.
If the maximum 5 days is imposed, this could seriously disrupt an orderly shared parenting arrangement and have undesirable consequences for a child who would normally be looked after by the Respondent. That being said, the Police have indicated that a Respondent would only be forced to vacate the premises for 5 days in extreme circumstances and most would only be issued with a 48 hour vacation Order to “cool-down”.
Despite the criticisms, it is clear that action had to be taken to address New Zealand’s ever present domestic violence problem.
If a Police Officer deems it appropriate to issue a Police Safety Order, it is likely that such Order would form the basis of an Application for a Temporary Protection Order in the Family Court.
If your safety or the safety of a member of your family is under threat, call the Police immediately. Regardless of whether an offence has been committed, from 1 July 2010 the Police will have the ability to provide immediate safe guards in situations involving domestic violence. In addition, if you or a member of your family is the victim of physical, sexual or psychological abuse, contact a family lawyer as soon as possible. All of the discussions with your lawyer are completely confidential and it is of primary importance that you and your family are safe at all times.