Under the Crimes (Domestic and Personal Violence) Act 2007 a police officer must apply for an AVO if they believe a domestic violence offence has recently been committed, or is being committed, or is likely to be committed. A domestic violence offence is defined in the Act as being a personal violence offence committed against someone with whom the defendant has a domestic relationship. If the defendant has been charged with a domestic violence offence, then the police have a duty to apply for an AVO for the person’s protection. If police decide not to apply for an AVO in these circumstances, they should record their reasons in writing.
In other cases, if police are satisfied the person requires protection they have discretion to make an AVO application even if they are not required to do so by the legislation.
If a person does not want the police to make an application, the police may still do so if they reasonably believe the person has been a victim of violence or there is a threat of violence or if the person has an intellectual disability and no guardian.
In a police application, the Police Prosecutor will represent the protected person at court. This means that the protected person does not need their own lawyer.
On the spot avo
If a person needs urgent protection, police can apply for an urgent provisional AVO (‘on the spot AVOs’) to provide protection until the first court date. A provisional AVO is a temporary order, usually in force for a maximum of 28 days. Like all AVOs, the order can only be enforced after it is given to (‘served on’) the defendant by police.
On 20 May 2014, the Crimes (Domestic and Personal Violence) Act 2007 was changed to grant police extra powers in relation to provisional ADVOs. Previously police had to apply for an AVO through an ‘authorised justice’. Now provisional orders can be granted by police officers of the rank of Sergeant or above. They will determine police applications based on the reasonableness of the applicant officer’s belief that an immediate order is necessary to protect a person or prevent substantial property damage. This power does not extend to the making of provisional APVOs or AVOs naming police officers as defendants or protected persons.
Police powers to detain a defendant for the purpose of making and serving a provisional order were also increased by the amendments to the Act. Previously police could arrest the defendant for the purpose of serving him or her with an order. Now, where police lack sufficient evidence to make an arrest, police can detain a person or control their movements through a range of specified directions such as remaining at the scene or going to the police station in the company of a police officer. There are some associated search powers related to transporting a defendant in a police vehicle. The powers are intended to ensure the safety of the protected person, including where the victim is reluctant to cooperate with police.