Want to know more about the law?

Want to know more about the law?


Changes to The Law
The Legislation
Legal Services contacts

Changes to the Law

Rape and Sexual Abuse

In 2008, the South Australian Parliament passed legislation to change rape and sexual assault offences laws. These are landmark changes and remove ambiguity about what constitutes consent to sexual activity.

Under the new laws, it's clear that sexual activity is not consensual if:

  • obtained by force or threats;
  • the victim is asleep or unconscious;
  • the victim is too intoxicated to agree;
  • the victim was unable to understand the nature of sexual activity;
  • the victim was mistaken about the identity of the person they were having sex with; or
  • the victim was being unlawfully detained.

In short, consent to sex must be given freely and voluntarily, not assumed.

There are also new tighter rules on questioning of victims and witnesses and restricting the distribution of evidence, such as explicit photographs, to help reduce the secondary trauma that victims of sexual abuse often experience going through the court process and giving evidence.

Domestic Abuse

New laws come into effect on Friday, 9 December 2011. The Intervention Orders (Prevention of Abuse) Act 2009 (IO Act) will give police and courts greater powers to prevent and stamp out family abuse. These new laws will improve the system of restraint and intervention for domestic violence and give police more power to intervene at the time of an incident so they can impose restraint conditions quickly, without having to wait for a court listing. They'll also make it easier for victims to remain in the family home and make the perpetrator leave. In addition, the Bill will:

  • Stop alleged perpetrators from personally cross-examining their victims in court;
  • Cover a wider range of relationships including a relationship between a carer and a disabled or ill person; and
  • Broaden the definition of family violence so that it covers physical, sexual, economic and emotional abuse.

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The Legislation

Rape & Sexual Assault

Amendments to the rape and sexual assault laws came into force on 23 November 2008. These laws ensure that the criminal justice system is more sensitive to the needs of victims of rape and sexual assault. The amendments to the Criminal Law Consolidation Act provide a clearer definition of sexual offences, including:

  • rape;
  • persistent sexual abuse of a child; and
  • consent.

The new laws also ensure that cases involving sexual offences against children will be given priority and victims of rape and sexual assault will be protected from cross-examination by the accused in person.

The following Acts contain the changes to the rape and sexual assault laws:

Alternative formats of all downloads can be obtained by calling 08 82071555 or by emailing agd@agd.sa.gov.au

Domestic Violence

On 10 September 2009 the Government introduced a new Bill into parliament called Intervention Orders (Prevention of Abuse) Bill. The Bill was passed on 1 December 2009.

The new laws will mainly be used to protect people against domestic abuse. However these laws cover personal violence whether it takes place in a domestic relationship or not.

The laws replace restraining orders with intervention orders. Intervention orders can be used to protect people from abuse by restricting what the perpetrator does as well as by requiring the perpetrator to work towards rehabilitation.

These changes have not yet come into effect. The Intervention Orders (Prevention of Abuse) Act 2009 will commence on Friday, 9 December 2011.

What kinds of abuse are covered?
The definition of abuse includes physical injury and damage to property, emotional or psychological harm and denying an individual financial, social or personal independence.

Which relationships are covered by the term ‘domestic abuse'?
Relationships including between spouses or partners (including former spouses or partners), between people in intimate relationships, and with children, grandchildren and grandparents, brothers and sisters, within an Aboriginal kinship group and between a carer and the person cared for are all protected under these laws.

When can an intervention order be issued?
Intervention orders can be issued when someone is at risk of being abused. The abuse does not need to have happened on any previous occasions.

What can an intervention order do?
Intervention orders protect people from abuse. They also protect children from hearing or seeing the abuse. Intervention orders usually forbid someone from doing something. They can also tell them that they must do other things.

For example, intervention orders often forbid people from making contact with another person. They can also stop someone from returning to the family home and they can limit how close that person can come to the protected person.

Intervention orders can require someone to surrender weapons or undertake a program dealing with substance abuse, problem gambling, anger control or mental health. All orders will contain firearms terms, except in rare circumstances.

Orders can also contain terms that protect children affected by the violence and ensure their continuing safety and security.

Housing options for victims

An intervention order can order the perpetrator to stay away from the family home, even though he or she may own or rent it. In such cases the protected person can change the locks and, if they live in a rented home, the landlord may not give the perpetrator a key or help him get in. Also, if they live in rented premises, the court can make an order that transfers the perpetrator's interest in the tenancy agreement to the protected person or nominee, as long as this person can meet the obligations (such as rent) under that agreement. Tenancy agreements will include not only agreements for residential tenancies but also residential parks agreements and agreements for the tenancy of rooming houses.

Victims who choose to move out of the home will not be denied access to personal possessions or access to items such as the family car. The court or police will be able to order the defendant to return personal property or to allow the victim to recover or use certain items. The victim will be able to do these things under police protection or in the company of someone else they nominate.

Further information is available in the fact sheet:  Changes to the laws about domestic violence- Tenancy Orders and Landlords (pdf 314 KB)

When can police issue an interim intervention order?
An intervention order can be issued by police, if there are grounds to do so and if the alleged perpetrator is present or in custody. If the perpetrator is not present, the police can apply to the court for an interim intervention order.

What happens when police issue an interim intervention order?

An interim intervention order issued by police serves as an application to the court for an intervention order, notifies the defendant when the court hearing will be and summons the defendant to come to court for the hearing. When police issue an interim order, there is no preliminary hearing by the court. The only hearing is a final hearing to determine what to do with the interim order.

An interim order issued by police can require the defendant to stay in a particular place until the final order is prepared and served. If the defendant won't stay as required by police or it looks like he or she is not going to stay, the police may arrest and detain the defendant without warrant for as long as it takes to prepare and serve the order, but for no longer than two hours unless approved by the court.

Additional police powers
In some cases victims may need immediate arrangements to be made to protect them against further abuse once an interim intervention order has been made. Police will be able to arrest and detain the defendant for up to six hours while these arrangements are made.

When an intervention order requires the defendant to surrender a weapon or article, police may search him or her and anything in his or her possession for that weapon or article or enter premises or a vehicle to take possession of it, and may use reasonable force to do so.

Police may also arrest and detain a person in custody without warrant for suspected breach of the interim order or a final order, as long as the person is brought to court no more than 24 hours later, except at weekends and public holidays.

Who can help police find the perpetrator?
Public sector agencies and those under contract to provide services to such agencies are obliged, if police request it, to provide any relevant information to help police find the defendant.
Who may apply to the court for an intervention order?
Police may apply for an intervention order, whether they have the consent of the alleged victim or not.

Anyone needing protection from an act of domestic or personal abuse may apply. An adult may apply themselves or, with the court's permission, someone else can apply on their behalf. A child can apply in person if they are aged 14 or more, with the permission of the court. Otherwise the child's application must be through a parent or guardian, someone the child usually lives with or another suitable person who has been approved by the court.

The Minister responsible for a child under a care arrangement can apply on behalf of or against such a child.

How long does an intervention order last?
All intervention orders, whether interim or not, have ongoing effect: they continue in force, subject to any variation or substitution by the court, until revoked. They cannot be made for a specific period.
How can an intervention order be changed or removed?

The defendant and anyone who can apply for an order can apply to change its terms or to have it removed. The defendant, however, must first ask permission of the court. The court will only allow the defendant to apply if there has been a substantial change in relevant circumstances since the order was issued or last varied.

Child defendants
Sometimes a child can abuse another member of the family, and can therefore be the subject of an intervention order. The Youth Court will be able to make intervention orders against children, using all the special safeguards afforded to children by that court.

Victim and witness protection
Under these new laws the identity of victims, children and witnesses will not be made publicly available. When in court, victims and witnesses will be able to give evidence from behind a screen or via C.C.T.V. and the defendant may not cross-examine them in person.

More information
The Second Reading Speech gives a more detailed explanation of the new laws.

Draft Second Reading Speech (pdf, 129 KB)

To read  the Second Reading Speech as delivered to Parliament, visit www.parliament.sa.gov.au 

Intervention Orders (Prevention of Abuse) Act  2009 (pdf 198 KB)

Fact Sheets about the changes to the laws about domestic violence.

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Legal Services contacts

Women's Legal Service

Address: 19 Market Street Adelaide SA 5000
Telephone Advice: 08 8221 5553
Email: wls@wlssa.org.au
www.wlssa.org.au

Legal Services Commission of SA

Address: 82-98 Wakefield St Adelaide SA 5000
Legal Help Line: 1300 366 424 (telephone advice)
www.lsc.sa.gov.au
www.lawhandbook.sa.gov.au

Aboriginal Family Violence Legal Service Inc.

Warndu Watlhilli-Carri Ngura (Pt Augusta)
Phone: (08) 8641 2195
Phone: 1800 111 052

Aboriginal Legal Rights Movement Inc. (ALRM)

Address: 321-325 King William St Adelaide SA 5000
Phone: (08) 8113 3700
Phone (24 hour service for emergencies): 1800 643 222
Email: info@alrm.org.au
www.alrm.org.au

Children's & Youth Legal Service of SA

Address: Unit 2, 59 Main North Rd, Medindie Gardens SA 5081
Phone: (08) 8342 1800
Phone: 1300 886 220
Fax: 8342 0899
Email ccls@ucwesleyadelaide.org.au
www.ucwesleyadelaide.org.au/CCLS

Women's Information Service (WIS)

Address: Chesser House, 91-97 Grenfell St, Adelaide SA 5000
Phone: (08) 8303 0590
Phone (local call cost for country callers): 1800 188 158
SMS: 0401 989 860
TTY: (08) 8303 0590
Email info@wis.sa.gov.au
www.wis.sa.gov.au
(Legal advice - by telephone, Tues 6pm - 8pm (a joint service with Women's Legal Service SA Inc.))

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Last updated: Tuesday, November 22, 2011