Legislative changes

This information helps keep you up to date with changes to the law which may affect your duties.

Summary of changes - Domestic and Family Violence Protection Act 1989

Queensland's amendments to the Domestic and Family Violence Protection Act 1989 commenced on 10 March 2003. These replaced the Domestic Violence (Family Protection) Act 1989.

• Key changes
• Main purpose of the Act
• New definitions of domestic relationships
• Other changes to the Act
• More information

Key changes

New definitions of domestic relationships that will need to be understood and used in relation to the Act.

Protection order applications.

• The declaration can be signed by a justice of the peace, a commissioner for declarations or a solicitor.
• The summons must only be signed by a Clerk of the Court or justice of the peace.
• Applications must be sent by a JP or C.Dec to the nearest magistrates court once court details (date, time and place) are noted.
• The new forms can be obtained from a magistrates court registry.

Main purpose of the Act

3A Main purpose of Act

1. The main purpose of this Act is to provide for the safety and protection of a person in the case of domestic violence committed by someone else if any of the following domestic relationships exist between the 2 persons:
   • a spousal relationship;
   • an intimate personal relationship;
   • a family relationship;
   • an informal care relationship.
2. The way in which the main purpose of this Act is to be achieved is by allowing a court to make a domestic violence order to provide protection for the person against further domestic violence.

New definitions of domestic relationships

1. Spousal relationship (s.12(1)) - people who are married, separated or divorced; biological parents of a child; or two people of the same or opposite sex who are living together or have previously lived together as a couple.
2. Intimate personal relationships (s.12A) - people who are or were engaged to be married to each other including a betrothal under cultural or religious tradition. It also includes people who are or were previously dating and whose lives have become enmeshed. The circumstances of the relationship including, for example, trust and commitment; the length of time for which the relationship has existed or did exist; the frequency of contact between the persons; and the level of intimacy between the persons will be considered to decide whether an intimate personal relationship exists.
3. Family relationships (s.12B) - people who are relatives of each other by blood or marriage such as a grandparent, aunt, uncle, step-parent, sibling, cousin or child (18 years and over). The relatives of those who are in or have been in a defacto relationship are included. A relative also includes a person it is reasonable to regard as a relative. This is considering that for some people the concept of a relative may be wider such as for Aboriginal people, Torres Strait Islanders, members of certain non-English speaking background communities and people with particular religious beliefs.
4. Informal care relationships (s.12C) - people where one person is or was dependent on another person (a carer) who helps the person in an activity of daily living (personal care activities). This may include dressing, preparing meals or shopping. The personal care must be required because of a disability, illness or impairment. The care must be provided in an informal way and not involve the payment of a fee or care as part of an arrangement, for example in-home care nurses. A fee does not include a pension or allowance in the carer’s own name from the Australian Government.

Other changes to the Act

• The provision to allow young people under the age of 18 years to apply for a DVO.
• All weapons-related provisions are now part of the Weapons Act 1990 and the Police Powers and Responsibilities Act 2000.
• Applicants have been extended to those people acting under another Act, such as the Adult Guardian, or someone acting under an enduring power of attorney.
• New provisions regarding child witnesses.

More information

• Domestic and Family Violence Protection Act 1989 on the Queensland Parliamentary Counsel website.
• Department of Communities - Community Services - Domestic and family violence prevention on the Communities Services website.

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Summary of changes - Mental Health Act 2000

Queensland’s Mental Health Act 2000 commenced on 28 February 2002. The Act completely replaced the Mental Health Act 1974.

• Key changes
• Application for a justices examination order
• Making a justices examination order
• Authority of justices examination order
• Duration of the justices examination order
• More information

Key changes

Key changes detailed below that are of relevance to justices of the peace (JPs) include:

• new provisions for the application for and making of justices examination orders (JEOs) to replace s.25 Mental Health Act 1974.
• JEO can be made by a magistrate or justice of the peace.
• JEO must be sent by JP directly to the nearest authorised mental health service (not the police).
• JEO is valid for up to seven days (not 14 days).
• section 25 of Mental Health Act 1974 (warrant to remove to a place of safety) will be replaced by the application and making of justices examination orders under sections 27-32 of the Mental Health Act 2000.
• new forms - application for a justices examination order and justices examination order will be issued to coincide with the commencement of the Act.

Application for a justices examination order

Any adult (a person 18 years and over) can make an application for a justices examination order.

An application for a justices examination order can be made to a magistrate or justice of the peace (qualified and magistrate's court).

• if the application is made to a magistrate, the applicant fills out the application with the registrar of a magistrates court
• if the application is made to a justice of the peace, the application form is given to the justice of the peace
• the application must be sworn and state the reasons the applicant believes the person has a mental illness and requires a justices examination order
• penalties apply for giving information the applicant knows is false or misleading (40 penalty units).

The person making the application may be the same person who makes the request for assessment. However, the application can be made even if the applicant has not made a request for assessment for the person.

Making a justices examination order

A magistrate or justice of the peace may make a justices examination order only if the magistrate or JP reasonably believes:

• the person has a mental illness, and
• the person should be examined by a doctor or authorised mental health practitioner to decide whether a recommendation for assessment should be made, and
• the examination cannot be properly carried out unless the order is made.

If a justices examination order is made by a magistrate, the registrar of the magistrates court must send the order and a copy of the application to the administrator of the authorised mental health service (usually the one closest to the person who is the subject of the order).

If a justices examination order is made by a justice of the peace, the justice must:

• send the order and a copy of the application documents to the administrator of the authorised mental health service, and
• send a copy of the order to the registrar of the magistrates court stated in the order - usually the magistrates court nearest the person who is the subject of the order.

The justices examination order can be faxed to the authorised mental health service. If the information is faxed, the registrar or justice must send the original of the order and a copy of the application documents to the health service.

Authority of justices examination order

The justices examination order authorises a doctor or an authorised mental health practitioner to examine the person to decide whether a recommendation for assessment should be made.

The doctor or authorised mental health practitioner may:

• if necessary, enter a place stated in the order, or another place it is reasonably believed the person may be found to conduct the examination
• exercise authority under the justices examination order with the help that is reasonable in the circumstances
• if reasonable and practicable in the circumstances, explain to the person in general terms the nature and effect of the justices examination order, and
• if reasonable and practicable in the circumstances, produce the order (or a facsimile copy) to the person for inspection.

Duration of the justices examination order

The order will state the period for which it is valid. This is up to a maximum of seven days, after which time it ceases to have effect.

More information

• Mental Health Act 2000 on the Queensland Parliamentary Counsel website.
• Queensland Health - Information about justice examination orders on the Queensland Health website.

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