An intervention order (including an interim intervention order issued by the police) can include terms prohibiting a defendant from doing certain things in order to protect a victim (or victims) from abuse. An intervention order can also require a defendant to do certain things [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12].
If a prohibition is imposed, conditions may be included in the order under which the prohibition does not apply.
If a requirement is imposed, the order may include conditions in relation to the requirement.
A firearms term must be included in every intervention order (including an interim intervention order issued by the police). There is only one exception to this rule [see Firearms terms].
Additional orders that can be made are:
- intervention program orders;
- tenancy orders;
- problem gambling orders;
- an order about when the defendant may apply for variation or revocation [see this page below].
An intervention order is ongoing until revoked by the Court, therefore an order cannot contain a term that sets an expiry date or limits how long the order can be.
The defendant may be prohibited from:
- being on, or in the vicinity of, premises at which a protected person resides or works;
- being on, or in the vicinity of, specified premises frequented by a protected person;
- being in a specified locality;
- approaching within a specified distance of a protected person.
A defendant may be ordered to stay away from premises even if they have a legal or equitable interest in the property. The protected person may change door or window locks, even if the premises are rented. If locks are changed on rented premises, the landlord must be given a key (unless the landlord is the defendant) [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12(5)]. See also Tenancy Orders.
A landlord who has been notified of a prohibition on the defendant from being on rented premises commits an offence if they give the defendant a key or assist or permit them to access the premises [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 32]. The maximum penalty is a $10 000 fine.
See also Principles for intervention..
The defendant may be prohibited from:
- contacting, harassing, threatening or intimidating a protected person or any other person at a place where the protected person resides or works;
- causing or allowing another person to engage in such conduct.
Tenancy orders and interventions orders are covered by section 25 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
A tenancy order is an order that the defendant will be taken to have given their interest in a tenancy agreement to a specified person or persons (not necessarily the protected person) with the landlord's consent.
Tenancy orders issued by the Court should be distinguished from the process available to victims of domestic abuse to replace an existing residential tenancy agreement on application to the South Australian Civil and Administrative Appeals Tribunal (SACAT). The Court does not require that there be a domestic relationship between the parties so a court ordered tenancy order is more likely to be utilised in non-domestic abuse cases. For details about making an application through SACAT see Intervention Orders and tenancy agreements
The Court may make a tenancy order if:
- the Court issues a final intervention order (i.e. not an interim intervention order)
- prohibiting the defendant from being on rented premises where the protected person lives
- where the defendant and protected person previously resided together, and
- where the defendant is a party to the rental agreement.
The Court may only make a tenancy order if the person who will be taking over responsibility for the tenancy agrees to do so. The person who will be responsible for the tenancy must also be able to fulfil the responsibilities of a tenant (for example, they must be able to pay the rent).
Where the landlord is a registered housing co-operative, the person taking over the tenancy must be eligible for membership of the co-operative and willing to accept the responsibilities of membership.
Where the landlord is Housing SA or a subsidiary of Housing SA, the person taking over the tenancy must meet the eligibility requirements of Housing SA.
The landlord does not have to consent to the tenancy order, but the Court will only make a tenancy order if it would be unreasonable for the landlord to withhold consent [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 25(2)]. However, rule 18.21 of the Magistrates Court Criminal Rules 1992 indicates that if an applicant wants a tenancy order, the Court may require that a Notice of Intention to Assign Tenancy (Form 38) be served on the landlord, any existing tenants and the person who proposes to take over the defendant's rights and responsibilities under the tenancy. This informs them of the application for a tenancy order and gives them a chance to be heard.
A copy of the tenancy order must be provided to:
- the protected person; and
- the defendant; and
- the landlord; and
- the person who is taking over the tenancy (if not the protected person); and
- the Registrar of the South Australian Civil and Administrative Tribunal.
The defendant is still responsible for any liabilities that arose under the tenancy agreement before the date of the tenancy order.
Any bond money paid by the defendant is not paid out to the defendant but stays held as bond money for the new person responsible for the tenancy.
An intervention order (including an interim intervention order issued by the police) must include a firearms term [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 14]. The firearms term must:
- require the defendant to surrender any firearm and any firearms licence or permit;
- suspend any firearms licence or permit while the intervention order is in force;
- disqualify the defendant from having a firearms licence or permit while the intervention order is in force.
The definition of a ‘firearm’ is comprehensive and includes ammunition or any part of a firearm [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 3(1)].
A firearms term must be included in the intervention order even if the defendant uses a firearm in the course of their employment [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 14(1)(b)(iii)].
The only exception to the requirement to include a firearms term is when:
- the Court is issuing an ongoing (final) intervention order (not an interim intervention order, when the term must be included); AND
- it is satisfied the defendant has never been guilty of violent or intimidatory conduct; AND
- the defendant needs to have a firearm for purposes related to earning a livelihood.
Problem gambling orders are covered by section 24 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
If the Court believes there is a reasonable likelihood of harm to family members because of problem gambling, then when confirming an interim intervention order/issuing a final intervention order, it may also issue a problem gambling order.
A problem gambling order is in addition to the intervention order and means the defendant is subject to a problem gambling family protection order under the Problem Gambling Family Protection Orders Act 2004 (SA). The Court can make the same kind of orders in a problem gambling order that the Commissioner can make when issuing a problem gambling family protection order, such as an order barring the defendant from particular gaming venues and/or requiring the defendant to attend counselling.
The Act states that where there are issues of substance abuse, problem gambling, other behavioural problems or mental impairment, an intervention order (including an interim intervention order issued by the police) may require the defendant to undergo an assessment to determine a form of intervention program that is appropriate for the defendant and the defendant's eligibility for the services included on the program.
An intervention order issued by the Court (but not the police) may require the defendant to participate in an intervention program in relation to substance abuse, problem gambling, other behavioural problems or mental impairment. Further details about abuse prevention programs are available at the Courts Administration Authority website.
The defendant may be prohibited from:
- damaging specified property;
- taking possession of specified personal property reasonably needed by a protected person;
- causing or allowing another person to damage or take such property.
The defendant may be required:
- 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;
- to return specified personal property to a protected person;
- 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.
See also Principles for intervention.
[See Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 15].
A final intervention order is taken to include a term fixing the date after which the defendant may apply for variation (or further variation) or revocation of the order as 12 months after the date of issue or variation of the order.
However, the Court may include a term that specifically states when the defendant can apply for variation or revocation of an order. The date set by the Court must be at least 12 months from the date of issuing the order.
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