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  • Do restraining orders show up on a police check?

    A person can apply to the Court to issue a person (aggressor) an order against the person. Similarly, the Court can suspend the defendant from moving anywhere close to the person or thing, including other conditions of the Order.

    A person who fears someone for their safety, or potential violence from another person can apply to get a Restraining Order.

    Restraining Orders are instant and special court orders that prevent the accused from “injuring” the complainant. There are many reasons or circumstances a person can apply for a Restraining Order.

    Depending on the State or Territory, Restraining Orders are also referred to in the legislation as;

    • Intervention Orders,
    • Intervention Violence Orders (IVO).
    • Domestic Violence Orders,
    • Apprehended Violence Orders (AVO).

    What is a Police Check?

    These days, it is getting hard to complete the following duties without a Police Check;

    • Application for paid employment,
    • Volunteering for an organisation,
    • Receiving accreditation for an occupation or entitlement,
    • Receiving certain licenses,
    • And other official duties in Australia.

    The Police Check discloses all the releasable details of an individual's conviction records and other criminal records recorded by a Court. The Police Check reveals the Disclosable Court Outcomes (DCOs) in a person's criminal records on the Australian Criminal Database.

    Does a Restraining Order show up on a Police Check?

    Although a court issues Restraining Orders, a Restraining Order is not included in a person’s criminal record. The Restraining Order is not like a court hearing where you can be convicted if found guilty. Therefore, Restraining Orders do not show up on a national police check unless you breach the conditions of the Order.

    The Court only restricts and cautions a person during a restriction order. It does not matter if they are guilty of the act or not, as long as the complainant can prove that the person’s action may cause them to fear.

    So, if you have a running Restraining Order, and want to obtain a Police Check, have no fear about seeing it in your criminal records.

    Can the restraining order show in other Background Checks?

    Most employers will exhaust many forms of legally available Checks to vet applicants who seek a role in their organisation.

    The police keep all records of an intervention order in private police records. Although these records are not available for public consumption, the police can reference them in other judgements.

    For example, the police prosecutor may tender a person's court orders as evidence against the person in a new proceeding.

    Although a restraining order does not show up on a police check and most other background checks, it may show up on a background check if the legislation requires it.

    Also, if a person applies for a role that will keep them;

    • Interacting with children,
    • Proximity to the aged or vulnerable,
    • Caring for others,
    • Providing any health services,

    The employer may request candidates to disclose their Restraining Orders and other court orders.

    What are the types of Restraining Orders in Australia?

    The Restraining Order is a nationwide program in Australia that shields people from potential attacks or aggressive conduct. In most States and Territories it is referred to as an “intervention order”. The Restraining Order is a proactive means of keeping the populace safe in Australia.

    There are two kinds of Restraining Order that a Magistrate will order depending on the parties' relationship.


    • ✔ Family Violence Restraining Order (FVIO)

    The Magistrate issues such Order where there is a relationship between the aggressor and the victim. Domestic assault and violence are pretty different (and more devastating) than other acts between non-related people. It includes;

    • Family relations,
    • Recognised unions like marriage,
    • Kindreds and Cultural groups,
    • Tribes.

    • ✔ Personal Safety Restraining Orders (PSIO)

    The Court will issue such Orders where they cannot justify any form of personal relationship between both parties. These issues also have a high potential of destruction to the victim and their properties.

    Such Orders usually involve cases between;

    • Business partners,
    • Workers and colleagues,
    • Against a group or congregation,
    • Neighbours.

    The conditions that the Court impose will depend on the type of Restraining Order the Court grants.

    Other terms for Restraining Orders include;

    • Restraining Orders,
    • Domestic Violence Orders,
    • Apprehended Violence Orders (AVO),
    • Intervention Violence Orders (IVO).

    When can a person apply for a Restraining Order?

    The Court does not just dish out Restraining Orders to every accused person a complainant brings to Court. There are rules and factors the Magistrate must consider before even issuing a court summon or a hearing. The Court will issue a restraining order where it establishes the below items.

    The Court rules that the person has reasonable grounds to fear or in fact fears;

    • The act by the defendant of a personal violence offence against the person,
    • The engagement of the other person in conduct in which the other person,
    • Intimidates the person,
    • Stalks the person,
    • The person reported engages in an act the Court deems should necessitate a restriction Order.

    The Court will issue a restraining order to the accuser where they can establish the acts of;

    • Harassment,
    • Physical assault,
    • Threats and violent actions,
    • Aggressive behaviours that constitute violence,
    • The accused engaged in actions that would cause mental or emotional harm.

    What offences does the Court issue a Restraining Order for?

    The Court will only issue a Restraining Order where the complainant can prove the potential or evidence of any of the following;

    • Physical assault or abuse,
    • Cause to reasonable fear,
    • Emotional or psychological assault,
    • Harassment, offensive and inciting behaviours,
    • Dangerous actions,
    • Economic abuse,
    • Negligence and Mistreatments,
    • Threat to property or person,
    • Stalking,
    • And other actions likely to cause detriment to others willingly or not.

    Will a Restraining Order affect my prospects?

    It is hard to tell how having a Restraining Order will affect a person's future or career. However, if you are looking towards a career in specific sensitive sectors, avoid getting Restraining Orders.

    Some employers (where the legislation stipulates it) in specific sensitive sectors may dig beyond a Police Check, and request court orders, injunctions or Police orders. In doing this, you will have to reveal details about your Restraining Orders.

    The Restraining Order can;


    • Prevent you from your dream job

    A Domestic Violence Order will stand as an ominous and telling warning to any employer. Organisations that work with the children and vulnerable will usually avoid employing someone with a notorious legal history.


    • Count against you in Court

    It may count against you if the Police reference your Restraining Orders to describe your irresponsibility. Before a Magistrate issues alternative lesser programs for an offence, they will also consider the person’s criminal history and tendency to re-offend.

    What conditions does the Magistrate impose on a Restraining Order?

    When the Court issues a conviction order, it will impose other conditions on the defendant. The defendant must adhere to these conditions for the duration of the Order.

    Depending on the circumstance around the charge, the Court may order;


    • The defendant to avoid certain places or persons

    Suppose the initial complaint relates to a person's unruly and violent behaviour at a pace or towards a person. In that case, the Court will order them to avoid such areas for the duration of the Order.

    For example, the Court can order a person never to come within a certain distance of a private club, school premises, residence or work areas of the complainant.

    If the offender visits such places without a lawful reason, the Court will consider it a breach of the Order.


    • Order the defendant to remain in a region/area until the completion of the Order

    The Court may impose a condition against the defendant leaving a particular state or region. If the Court believes that the offender may abscond to threaten the complainant in a new area, the Court will impose a no-migration order for the period.

    During this period, the defendant must remain in that area or region.


    • Impose a house arrest

    If the Court considers the defendant of potential detriment to the person or State; the Court will impose a house arrest.

    The defendant may have to wear a leg GPS tracker or other devices that report their location at all times. The Court can also impose a house arrest as an alternative to remanding the defendant in jail.


    • Ineligible for specific licenses and revocation of existing ones

    Where the Court rules that a defendant may attack the complainant or any other person, they will impose conditions that will prevent them from getting a firearm.

    The Court may also ask them to surrender all firearms or other legal weapons in their possession.


    • Ask them to vacate a building

    If the defendant shares an apartment with the victim, the Court will ask them to seek accommodation elsewhere. The Court will also consider the victim's safety, Order that the defendant not reside close to the victim or any other applicant.


    • Making claims to a disputed property

    It will breach the Order if the defendant takes further actions relating to a disputed property after the Court warned them against it. During the period of the Order, the Court will hold any activity on the disputed property.


    • Forbid you from contacting the complainant

    A Restraining Order comes with the default condition that a defendant cannot contact the victim or complainant except through their parole officer.

    Making any attempts or means to contact the other party outside of the Court and the parole office will result in a breach. Any such breach will also show up on a criminal record check certificate.


    • Other conditions the Court deems necessary.

    The Court will also impose other conditions it considers necessary to the victim's safety or the complainant. Also, the Magistrate may invite all parties for a hearing to determine the conditions it will impose.

    The offence of Breaching a Restraining Order

    It is a severe offence to breach the conditions of your Restraining Order. Depending on the severity of the breach, or offence that you commit, the Court may;

    • Convict you of the offence,
    • Sentence you for the breach,
    • Adjust the conditions of your Restraining Order.

    Although a Restraining Order does not enter your criminal records, breaching it does. The Criminal record will disclose all history of an individual’s breach, including the cause and the reasons. Penalties for breaching a Restraining Order include;

    • Fines,
    • Imprisonment,
    • Conviction recording.

    Who can apply for a Restraining order in Australia?

    The varying circumstances can allow flexibility on who applies for a Restraining Order in Australia.

    Primarily, the person needing protection should apply for a Restraining Order. However, in emergencies and other factors, others can apply for the Restraining Order on their behalf like;

    • The Police,
    • An adult who serves as the legal guardian for a child. The law must not handicap such adults,
    • A Child can also apply for a Domestic Violence Order if the Magistrate permits it,
    • When applying for Restraining Orders in organisations, the employee must submit all applications through their employer.

    How long does a Restraining Order last?

    The duration for Restraining Orders vary across Australia; it depends on the legislation of the States. However, the Court will impose a Restraining Order until they consider the victim will be safe.

    The period can range between 12 months to 4 years, depending on the State or Territory laws.

    Can a Restraining Order be spent?

    The Spent convictions scheme is a program that “pardons” an offender for a conviction on their criminal record. An eligible offence will become "spent" if a crime-free period elapses without the offender getting another sentence.

    The waiting period in Australia is;

    • Ten years for a conviction given as an adult or by an adult court, or
    • Five years (3 in NSW) for convictions given in a juvenile court or as a youth.

    The Spent Convictions Scheme only applies to convictions that the court records. Since a Restraining Order is not the same as a conviction, it cannot be Spent under the law.

    Can I dispute a Restraining Order?

    If you do not agree to the allegations and the charges, you must present your grievances at the court hearing. If you inform the Magistrate of your decision to dispute the matter, they will set a pre-trial conference.

    At the pre-trial conference, the parties should;

    • Get their defence,
    • Mention the reasons and basis for the dispute,
    • Reach an agreement to the dispute.

    How can I obtain a national criminal history check?

    Individuals

    If you are an individual, you can obtain a national criminal record check certificate online via Australian National Character Check’s police check application form. The results are dispatched via email.

    Business and Enterprise Customers

    Business and Enterprise customers are able to sign up to ANCC’s business portal where they can order, manage, track and view candidates’ criminal history check results on their business portal. Organisations will undergo a process for approval prior to being granted access to ANCC’s business portal.

    ANCC sends an invite to the applicant to complete their criminal record check online and handles the application and informed consent form. Contact ANCC’s business and enterprise partnerships team today to enquire about setting up a business portal for your organisation.

    Sources

    Legal Aid Western Australia (Responding to Restraining Order Applications) - https://www.legalaid.wa.gov.au/find-legal-answers/restraining-orders/restraining-orders/responding-restraining-order-applications

    Legal Services Commission of South Australia (Where there is an Intervention Order against you) - https://lsc.sa.gov.au/resources/InterventionOrderRecipientFactsheet.pdf

    Legal Services Commission of South Australia (Intervention Orders Factsheet) - https://lsc.sa.gov.au/cb_pages/interventionordersfactsheet.php

    Youth Law Australia (Restraining Orders) - https://yla.org.au/nsw/topics/courts-police-and-the-law/restraining-orders/

    Australian Law Reform Commission (Grounds for obtaining a protection order) - https://www.alrc.gov.au/publication/family-violence-a-national-legal-response-alrc-report-114/7-other-aspects-of-a-common-interpretative-framework-2/grounds-for-obtaining-a-protection-order/

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