Restraint or restraining orders

Section 106B of the Justices Act 1959 provides for the application for and approval process of restraint orders. There are four categories of people who may apply for a restraint order: police officers, a person against whom behaviour was directed, or who is a parent or guardian of a child against who behaviour was directed; a guardian or administrator under the Guardianship and Administration Act 1995, or a person granted leave to apply.

An application for a restraint order is made to the Magistrates Court, and the matter is heard and determined (decided) by a Magistrate. The application form is a 48a form and is available on the Magistrates Court website, which also provides advice on Restraint Orders for all parties involved. The Magistrates Court site provides valuable information for both the person applying for the order (the applicant) and the person against who the order is being sought (the respondent).

Behaviour liable to a restraint order

There are four categories of behaviour in a person that may give rise to a restraint order against them:

1. A person has caused person injury or damage to property and that person, without the restraint order in place is likely to cause damage or harm again.

2. A person has threatened to cause personal injury or damage to property and that person, without the restraint order in place is likely to carry out that threat.

3. A person has behaved in a provocative or offensive manner, this behaviour being likely to lead to a breach of the peace, and without the restraint order in place is likely to behave in such a manner or similar manner again.

4. A person has stalked the applicant, or the person whose benefit the application is made, or has stalked a third person, causing the applicant/beneficiary of the restraint order to feel apprehension or fear.

The Magistrate must be satisfied on the balance of probabilities of the existence of the harm, threat, stalking or behaviour. The balance of probabilities is a lower standard of proof than that of beyond reasonable doubt, the criminal standard of proof when a court considers guilt or innocence.

There are two types of restraint order – interim (temporary) and final orders. Interim orders are available where there is a sense of urgency in protecting the applicant or beneficiary of the order from the conduct of the person against whom the order is sought. The difference between interim and final orders is that interim orders can be made before the respondent is notified of the application, meaning that they may be in breach of the order without knowing it. Respondents are notified as soon as possible, and interim orders usually only last until the next stage of the hearing process for the final orders to be made.

A further resource to the excellent resources on Restraint orders on the Magistrates Court website, is the Women’s Legal Service fact sheet on restraint orders. If you are considering a restraint order please contact the Tasmania Police and seek legal advice.