New Powers For Police - On The Spot Protection Orders
Article written by Colin Abernethy
The Police have the power 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 10 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 person’s 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).
In the Respondent refuses or fails to comply with the terms of the Order, 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 family 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 legislation provides the Police with the ability to ensure the immediate safety of victims of family violence by removing the alleged offender 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 family violence occurring and that an Order is necessary for the safety of the victim.
There are concerns with these 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 10 days is imposed, this could seriously disrupt a 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 10 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 family 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, the Police have the ability to provide immediate safe guards in situations involving family 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.