Personal Protection Orders and Workplace Protection Orders

Contributed by Amy Bascombe and current to March 2022

What is personal violence?

According to the Personal Violence Act 2016 (ACT) section 8, personal violence means:

• Physical violence or abuse:this is the use of violence to hurt, control or intimidate you. It may include hitting, punching, slapping, kicking, strangling or using weapons;
• Sexual violence or abuse: This is the use of sex as a way to control, hurt and intimidate you. This may include sexual assault, forcing you to view pornography or forcing you to participate in unwanted sexual acts;
• Threatening behaviour: this is when someone makes you fearful that they or someone else will hurt you or harm you in some way;
• Stalking: this is when a person follows or watches you or visits places where they know you will be, to tries to monitor your whereabouts and intimidate you;
• Harassing, intimidating or offensive behaviour: This includes repeated unwanted contact by the abusive person, acts to make you scared or fearful, and behaviour or use of language towards you that you find insulting;
• Damaging property: this is when someone intentionally destroys or damages your property, which can include your home, your car, your personal belongings and your pets.

What is a Personal Protection Order?

A Personal Protection Order is an order made by the ACT Magistrates Court that can protect you from some anyone who has engaged in personal violence against you.

Personal Protection Orders are made under the Personal Violence Act 2016 (ACT).

What is a Workplace Protection Order

If the personal violence happened at your workplace, then your employer may be able to apply for a Workplace Protection Order.

Who can apply for a Workplace Protection Order?

Only an employer can apply for a Workplace Protection Order. The employer can apply to protect employees, other people at the workplace (for example, customers), or property at their workplace. In a large workplace, it may not be possible for the employer to make the application themselves, or it may be difficult to work out who the employer is. There is no law or formal policy about this issue, however the Court will usually accept a letter signed by a Company Director or the Director-General/Secretary of a government workplace, as proof that the employer has authorised the application.

What can a Personal or Workplace Protection Order do?

A Personal or Workplace Protection Order can tell the person using violence to stop:

• Hurting you;
• Staying in the house you share;
• Contacting you face-to-face or by telephone, text message or email;
• Threatening you;
• Harassing you or being offensive to you;
• Damaging your property;
• Hurting or threatening to hurt your pets;
• Going to places where you would usually go (eg. home, work or school);
• Getting another person to do any of these things to you;
• Holding a firearms licence.

Will the other person get a criminal record?

A person does not get a criminal record if there is a Personal or Workplace Protection Order against them. They only get a criminal record if they are found guilty in court of not doing what the Personal or Workplace Protection Order says. This is called ‘breaching’ the Order.

What if the person is related to me?

If the person using violence is related to you (for example, if they are your ex-partner, a biological relative, or they are considered your relative in your culture), you can get a similar order called a Family Violence Order (FVO). Please see the Chapter on Family Violence Orders for further information.

Should I apply for a Personal Protection Order?

Personal Protection Orders protect the safety of a person and/or their children. Orders give the respondent a clear message that their use of violence is unacceptable and that things have to change. For many people, the decision to apply for an order is not an easy one to make.

If you do not want to get an order, or haven’t made up your mind yet, there are other things you can do to stay safe:

• Warning Letters: A lawyer at Legal Aid may be able to write a ‘warning letter’ for you. Warning letters can tell the other person that if the violence continues, you will apply for an order;
• Mediation: If you have an ongoing dispute with someone, it may be worthwhile to try to sort out your issues with the help of an independent third party. One way to do this would be to ask the other person to attend mediation (see‘Non-Legal Support’, below);
• If your dispute is with your neighbour, you will find more information on how to address this in the ‘Neighbours and Neighbourhood Disputes’ chapter.

Do I have to have a lawyer to apply for a Personal Protection Order?

Many people apply for a Personal Protection Order by themselves but you can also have a solicitor represent you. It is often helpful to get advice about your situation before you apply. Legal Aid provides free advice, and in some limited instances representation, in Personal Protection matters. For further details, see Useful Contacts.

Can I include my kids on the order?

Yes – if your children aged under 18 are also at risk of personal violence, you can apply to have them included on the Personal Protection Order.

Application process

If you have decided to apply for a Personal or Workplace Protection Order, you then need to decide if you are going to apply for an interim order, or a final order only. It is important to know that the person who has engaged in personal violence (the ‘respondent’), will be given a copy of your application and will be able to read the allegations you have made about them.

Applications for interim orders

You can apply for both an interim order and a final order if you are experiencing personal violence or at risk of personal violence in the short term. You can also apply if your property is at risk of substantial damage from the person who has engaged in personal violence.

You must make an application for an interim order before 11.30am on a weekday, and the Court will make a decision about whether to grant you an interim order that day. If you are at Court and cannot file by 11.30am, you can ask the Court to accept your application anyway. The Court will only do so where they are satisfied that your application is sufficiently urgent (usually because you are at physically at risk).

The Court will make the order if they decide that it is necessary to protect you from personal violence, or to protect your property from substantial damage. The Registrar or Magistrate may ask you some questions to help them make this decision, and you will need to ‘swear’ (for those who believe in a God) or ‘affirm’ (promise) that you will tell them the truth.

If the Court makes an interim order, the order gets sent to the police and it starts working as soon the police give a copy of the order to the respondent. The order stays in place until your application for a final order is finalised (either by a decision of the court or by agreement with the respondent).

Whether or not the Court grants you an interim order, they will give you a date and time when you and the respondent both need to come back to Court for a return conference.

Applications for final orders

If you do not think that there is an immediate risk of personal violence towards you, you can apply for a final order only. You can lodge this application at the Court any weekday from 9am to 4.30pm. When you lodge it, you will be given a time and date when you and the respondent both need to come back to Court for a return conference.

When does the order start working?

If the respondent is not at Court when a Personal or Workplace Protection Order is made, the order starts working as soon as they are served with the order (personally handed a copy) by the police. If the respondent is at Court when the order was made, the order starts working straight away.

Return conference

The first time you will need to come back to Court after you lodge your application is for what is called a return conference. This is a type of mediation where you and the respondent sit in separate rooms at the Court, and a person who works at the Court (called a Deputy Registrar) will go between you both to see if you can agree on what should happen next. You can have a lawyer or a support person with you if you choose. You do not need to bring any proof of the violence or any witnesses to the return conference.

If the respondent does not turn up to the return conference, and the Court has proof that the respondent has been served, then you can go into a courtroom and ask a Magistrate to make a final order with the same restrictions on the respondent which you asked for in your application. If the respondent does come to the return conference, they can:

1. Consent to the order being made final with the same restrictions you asked for in your application;
2. Consent to the order being made final, but only if you agree to some changes;
3. Refuse to consent to the order, but offer undertakings. Undertakings are a promise to the Court that they will not engage in certain behaviour. They look and sound similar to Personal Protection Orders, but they cannot be enforced by the Court or the police;
   
4. Refuse to consent to the order and not offer undertakings.

If you cannot reach an agreement at your return conference, the Court will give you another date and time when you need to come back to Court for another return conference and final hearing.

Hearing

On the day of your final hearing, you will have another return conference to see if anything has changed and if there is any agreement between you and the respondent. If there is not, your case will go into court in front of a Magistrate on that day.

What do I need to prove?

The Magistrate will make a final Personal Protection Order if they decide that the respondent has engaged in personal violence and that they may engage in personal violence again if the Court does not make an order. For a Workplace Protection Order, the personal violence must be in relation to the workplace.

How do I prepare for a hearing?

Whichever side of the dispute you are on, it is a good idea to seek legal advice well in advance of your hearing. A lawyer who hears all the details of your case is in the best position to give you individual guidance and assistance in preparing for the hearing. Some of the things they will talk to you about are:

• What sort of evidence you will need to prove your side of the story – this might include bringing witnesses to the hearing or getting other information by subpoena;
• How to prepare to give your evidence in Court – you will need to do this by sitting in a witness box an ‘swearing’ or ‘affirming’ to the Court that you will tell the truth;
• How to prepare for the other person in the dispute (or their lawyer) to ask you questions – this is called cross-examination;
• If you will not have a lawyer with you at Court, how you can prepare to make your case to the Court that they should make the decision that you want them to.

If the hearing does not go my way, will I have to pay for the other person’s legal costs?

Usually you will only have to pay for your own legal costs (if you have any). In rare circumstance, the Court will tell you that you have to pay for the other person’s legal costs – for example if they think you have wasted the Court’s time, had no basis to make the application or you have not followed the Court’s instructions on purpose.

What happens if the respondent does something which the order says they are not allowed to?

If the respondent does something which the order says they must not do, then you can report this to the police as a ‘breach’ of the order. You should keep notes or other records of every time you think the respondent has done something they were not allowed to do under the order, even if police do not investigate it as a breach or the respondent is not charged.

A breach of a Personal or Workplace Protection Order is a criminal offence, and if the respondent is charged and convicted of a breach, they face up to five years in prison and a fine of $75,000.

How long does an order last for?

When you apply for an order, you can ask for a final order for any period of time up to 12 months. Your order may end up being made for a shorter time period, so you should check this carefully and seek legal advice if you are not sure how long your order lasts for.

In special or exceptional circumstances, you can ask the court to make an order for longer than 12 months. Legal advice should be sought before asking for an order to last longer than 12 months.

What if I want to stop or change my order?

If any parts of the order are not working, or your circumstances have changed, you can apply to the Court to have the order changed or to withdraw it. If you want it changed, you will go through the same process as you did with your first application – you will lodge your application, then have a return conference, and if there is not agreement you will have a second return conference and then final hearing on the same day.

If you want to withdraw an interim order, you can do so at any time. Once an order is made final, you are required to apply to the Court to have the order ‘revoked’, i.e. removed. The Court has a discretion about whether to remove an order and you should seek legal advice prior to lodging an application to revoke a final order.

My order is about to run out, can I get it extended?

Yes you can. You must apply to the Court to have your order extended before it runs out. To make sure there is no gap where you are not protected, you should apply for the extension approximately two months before your order expires. It is often easier to get an order extended than to start again and apply for a new order.

For respondents: I’ve been served with an order – what should I do?

You must comply with the order. If you do something which the order says you must not do, you may be charged with a breach of an order which is a criminal offence. If you do not understand the order, you should seek legal advice immediately. If you would like legal advice or for a lawyer to come with you to Court, you should contact Legal Aid or a private lawyer (see Useful Contacts).

The paperwork you were served with will contain some information about the basis of the application. It will also include a date that you must attend court. If you do not attend in person (you are not able to appear by phone), a final order may be made against you in your absence.

Other things to think about

Will my order work outside of the ACT?

Not automatically. If you would like your order to work outside of the ACT, you need to take a copy of your order to a local court in the State or Territory you need it to operate in. You may also need to take a copy of the affidavit completed by the police officer who served (gave) the order to the respondent. This process can vary depending on which state or territory you want the order to apply.

Getting Financial Assistance

If someone has committed physical violence against you and you were injured, you may be able to seek financial assistance from the ACT Government to help you recover from your injuries. If you would like more information about this scheme, you should contact Legal Aid ACT or Victim Support ACT (see Useful Contacts).

What about my immigration status?

If you are the respondent to a Personal Protection Order and you are on any Australian visa, you should also seek migration advice as soon as you can after you are served. This is because the order may have impacts on your immigration status.