Te Rau N Te Mwenga Act 2014

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A BILL FOR AN ACT TO PROVIDE FOR THE PROTECTION OF VICTIMS OF DOMESTIC VIOLENCE, THE PREVENTION AND ELIMINATION OF THE CRIME OF VIOLENCE WITHIN DOMESTIC RELATIONSHIPS; AND FOR RELATED PURPOSES

"access order" means an order issued pursuant to section 22 of this Act granting access to the respondent to any child or children within the domestic relationship where temporary custody of the children has been awarded by the court to the complainant or to some other person;

"applicant" means a person who applies for a protection order under this Act and includes a person on whose behalf an application is made;

"CEDAW" means the Convention on the Elimination of All Forms of Discrimination against Women;

"complainant" means a person who applies for or for whose benefit a protection order or other order under this Act is applied for;

"custody order" means an order issued pursuant to section 22 of this Act granting temporary custody of any child or children to the applicant;

"emergency protection order" means an order in situations of urgency as provided for in section 16;

"final order" means a final protection order made under section 18 of this Act that deals with a substantive matter in issue in proceedings on a final basis;

"harassment" means engaging in a pattern of conduct that induces the fear of harm in a complainant including-

(a)repeatedly watching, or loitering outside of or near the building or place where the complainant resides, works, carries on business, studies or happens to be;

(b)repeatedly making unwarranted phone calls or inducing another to make such phone calls to the complainant, whether or not conversation ensues;

(c)repeatedly sending, delivering or causing the delivery of unwanted letters, packages, other objects, facsimiles, text messages or other electronic mail to the complainant;

"health care provider" means a doctor, nurse or health worker engaged in any medical facility providing medical services to members of the public;

"intimidation" means any word or action that intentionally threatens the use of force or the threat of force, causing or threatening to cause physical injury to any person;

"respondent" means any person who is or has been in a domestic relationship with the complainant and who has committed or allegedly committed an act of violence against the complainant or against whom an order is sought or made under this Act;

"person at risk" means any person in a domestic relationship who is at risk, or has been subjected to domestic violence;

"police safety order" means an on-the-spot order issued by the Police and referred to in section 26;

"protection order" means an emergency, temporary or final protection order made under this Act;

"sexual assault" means sexual contact that involves the intentional touching or penetration by the perpetrator of the complainant's intimate parts; or, the touching by the complainant of the perpetrator's, the complainant's, or another's intimate parts effected by the person in a position of authority; or, by coercion, or by inducement if the complainant is under 13 years of age or mentally impaired; or, the touching of the clothing covering the immediate area of the intimate parts; or, the intentional penetration or touching with seminal fluid or sperm by the perpetrator of the complainant's body or the clothing covering the complainant's body.

"sexual harassment" means an unwelcome sexual advance made in verbal, physical and/or other forms, intimidation, threat and/or other forms of coercion that makes sexual intercourse an unavoidable option for the victim or that creates an unbearable hostile environment and or causes damage in terms of the person's employment, professional, economic, psychological and or any other form of well-being.

"stalking" means repeatedly following or pursuing the complainant in an unwanted and unwelcomed manner whether in person or by telephone calls, text messages or other electronic means;

(a) to ensure the safety and protection of all persons including children, who experience or witness domestic violence;

(d) to facilitate enforcement of Court orders issued in order to stop acts of domestic violence;

(e) to enact provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence against Women; and

(a) that domestic violence, in all its forms, is unacceptable behavior and is a crime;

(b) that on the basis of statistics domestic violence is a crime almost always perpetrated by men against women and children;

(d) that domestic violence extends beyond physical, sexual, psychological and economic violence and may involve the exploitation of power imbalances and/or patterns of abuse over many years;

(f) the particularly vulnerable position of children who are exposed to domestic violence as victims or witnesses, and the impact that such exposure can have on their current and future psychological, physical and emotional well-being;

(g) that domestic violence is best addressed through a coordinated legal and social response of assistance to victims and measures to prevent violence and, in certain case, may be the subject of appropriate intervention by the Court.

(3) A Court that, or any person who, exercises any power conferred by or under this Act in relation to domestic violence must be guided in the exercise of that power by the objects referred to in this section.

(1) For the purposes of this Act, any act or omission or conduct of the respondent or any threats to the complainant or any person related to the complainant by the respondent in a domestic relationship shall constitute domestic violence if it-

(a) harms, injures or endangers the health, safety, life, limb or well-being, whether mental or physical of the complainant or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;

(b) harass, harms, injures or endangers the complainant with a view to coercing the complainant or any other person related to the complainant to meet any lawful demand for any property; or

(c) otherwise injures or causes harm, whether physical or mental, to the complainant by any conduct mentioned in paragraph (a) or in paragraph (b);

(d) otherwise injures or causes harm, whether physical or mental to the complainant.

(a) "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm or danger to life, limb or health or impair the health or development of the complainant and includes assault, criminal intimidation and criminal force;

(b) "sexual abuse" includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a person;

(c) "verbal, emotional and psychological abuse" means a pattern of degrading or humiliating conduct towards the complainant, including —

(i) repeated insults, ridicule or name calling, manipulating, making the victim feel guilty, ashamed and responsible for what he or she is experiencing;

(iii) the repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the victim's privacy, liberty, integrity or security;

(i) deprivation of all or any economic or financial resources to which the complainant is entitled under any law or custom whether payable under an order of a court or otherwise or which the complainant requires out of necessity including, but not limited to, household necessities for the complainant and dependent children, if any, property, jointly or separately owned by the complainant, payment of rent related to the shared household and maintenance;

(ii) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the complainant has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the complainant or her children or any other property jointly or separately held by the complainant;

(iii) prohibition to, or restriction on, continued access to resources or facilities which the complainant is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

(iv) damaging or destroying personal property in which the complainant has an interest.

(b) a number of acts that form part of a pattern of behaviour may amount to violence for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.

Domestic relationship means a relationship between the complainant and the respondent in any of the following ways-

(a) they are or were married to each other, whether in accordance to law, custom or religion;

(b) they live or lived together in a relationship in the nature of marriage, although they are not, or were not, married to each other;

(e) they are or were in an engagement, courtship or customary relationship, including an actual or perceived intimate or sexual relationship of any duration;

(g) they are wholly or partially dependent upon ongoing care in the same household;

(b) to perform any other function or exercise any other power conferred on the court under this Act.

(2) Despite any other law or rule of court, a Magistrate's Court in any district may hear and decide a proceeding under this Act that has been started in a Magistrate's Court in any other district.

(1) The Minister shall from time to time call for applications from those wishing to be registered as counsellors for the purposes of this Act.

(2) The Minister may declare a person to be a registered counsellor only if he or she has appropriate qualifications or experience in counselling in relation to domestic violence.

(3) The Minister may declare a person to be a registered counsellor for up to five years.

(a) consult with the Secretary of the Ministry responsible for women affairs, President of a recognised national council of women, and an organisation or task force established solely for the purpose of protecting women or protecting victims of domestic violence; and

(b) ensure so far as practicable that there are registered counsellors in each local government region.

(6) A declaration must be in writing and a copy of it must be published in the Gazette as soon as practicable after it is made.

(7) The Minister must deregister a counsellor at any time in consultation with those named in subsection (5)(a) where misconduct has been proved.

(a) counselling and advising on the problems in personal relationships that are likely or have led to the use of domestic violence;

(b) carrying out, upon the directions of a Court, any counselling, assessment or investigation relating to the children and the family of the parties and providing reports accordingly;

(d) facilitating immediate arrangements for medical or other examination of a child of the household; and

(e) performing any other function which the Minister may assign for the purposes of this Act.

(9) Any counsellor may, in carrying out his duties, seek the assistance of any police officer.

(a) establish a register of persons in respect of whom a declaration is made under section 8; and

(4) Any person may inspect the register or a copy of it free of charge during normal office hours.

(a)to prevent violence between family members and others in a domestic relationship; and

(b)to facilitate and maximise safety of and protection of persons who experience and fear domestic violence.

(1) An application for a protection order may be made by the Complainant to the Court nearest to where the complainant lives either temporarily or permanently, works or where the act of domestic violence occurred or is occurring.

(2) In the case of a complainant who is unable to make an application personally-

(a) due to physical incapacity, fear of harm or for any other sufficient cause; or

(b) due to lack of capacity to understand the nature and to foresee the consequences of decisions in respect of matters relating to his or her personal welfare or lacks the capacity to make or communicate decisions in respect of such matters,

(ii). a social welfare worker, counselor, community worker or women's interest worker; or

(3) Where a person is unable to give oral or written consent due to mental incapacity to the filing of an application for a protection order, any person making an application on behalf of such a person in such a situation shall act in the best interests of that person.

(4) No person who in good faith makes an application for a protection order or provides to the court any evidence or information in support of such an application, shall incur any civil or criminal liability in respect of the giving of such information.

(5) An application under subsection (1) may be made by or on behalf of more than one person.

(6) An application for a protection order may be made ex parte, unless the Court otherwise orders it to be on notice.

(7) A court must give priority to the hearing of applications for protection orders.

(3) If an application is made orally, the court clerk must reduce the application to writing on Form 1 in the Schedule.

(4) A written or oral application made by other persons on behalf of the complainant must comply with Form 2 in the Schedule.

(1) A court where family or criminal proceedings are pending and considering the circumstances of the case, may on its own motion or on an application by the complainant, issue a protection order upon such terms and conditions as the court considers appropriate.

(2) In considering whether to grant a protection order, the court must take into account the safety, health and well-being of the complainant and the interests of any person dependent on the complainant.

(1) The court may, on an application made under section 12 make a protection order if it is satisfied that-

(a) the respondent is using, or has used, domestic violence against the complainant, or a child or any other member of the family living in the same household; and

(b) the making of an order is necessary for the protection of the complainant, or a child or any other member of the family living in the same household.

(2) In deciding whether to make a protection order, the court must take into account the following-

(a) the need to ensure that the complainant is protected from domestic violence;

(b) the well-being and the accommodation needs of the complainant, the complainant's children and any other family member living in the same household;

(3) In deciding whether to grant a protection order, the court must not take into account any custom that may put the applicant or child or any other member of the household at risk of domestic violence.

(4) The court may include in the protection order the names of other family members, if the court is satisfied the respondent has committed or is likely to commit an act of domestic violence against other family members.

(5) Without limiting subsection (1)(b), the court must consider whether the behaviour of the respondent forms part of a pattern of behaviour in respect of which the complainant, or child or other members of the family living in the same household, need protection.

(6) Without limiting the matters that the court may consider when determining whether to grant a protection order, the court must have regard to-

(a) the opinion of the applicant or complainant, or a child of the complainant's family, or a member of the family living in the same household, of the nature and seriousness of the behaviour in respect of which the application is made; and

(b) the effect of that behaviour on the applicant, or a child or a member of the family living in the same household.

(7) In all cases when granting protection orders, the court is required to explain the orders and consequences of court orders to the parties.

(a) an application for a protection order has been made and is before a court; and

(b) the person named in the original application as the respondent applies for a protection order and the complainant named in the original application is named in the cross application as the respondent; and

(c) the cross application is made orally, or is made in writing but not served on the complainant named in the original application at least 1 business day before the hearing of the original application.

(2) If the cross application is made in accordance with subsection (1)(c), the court must adjourn the hearing of the cross application and set a date by which the written cross application is to be served on the original complainant named in the original application unless that complainant consents to the court hearing the cross application before hearing the original application or together with the original application.

(3) The court may make a temporary protection order in relation to the cross application if-

(a) the complainant named in the original application does not consent as mentioned in subsection (2);

(b) at least one of the following persons is in danger of personal injury, or the property of at least one of the following persons is in danger of substantial damage-

(i) the person for whose benefit the protection order, based on the cross application, is sought;

(ii) another person who is sought to be protected by the domestic violence order based on the cross application.

(1) A court may make an emergency protection order where an ex parte application for a protection order is made orally or on Form 1 in the Schedule of this Act.

(2) In determining whether to grant an emergency protection order, the court shall consider and be satisfied that-

(a) there are reasonable grounds for believing that if an emergency protection order is not made, the respondent may cause-

(i) physical, further verbal, emotional, psychological violence to the complainant or to a child or to any other member in the household; or

(ii) remove or cause damage to the property or cause death or injury to any animal of the complainant; or

(iii) the complainant will be prevented or deterred from pursing the application if the order is not made immediately.

(3) An emergency protection order may contain any conditions set out in Division 4 of this Part of the Act.

(4) A copy of the emergency protection order must be immediately sent by the court to the Police in the area nearest where the complainant is currently residing, whether temporarily or permanently.

(5) An emergency protection order shall be effective for a period of no more than 28 days including the day the order is made.

(6) A court must determine an application for an emergency protection order on the same day on which the application is made unless there are exceptional circumstances.

(1) The court may grant a temporary protection order and include any conditions listed in Division 4 of this Part of the Act if it considers it to be in the best interests of the complainant.

(2) In determining whether it is in the best interests of the complainant to issue a temporary protection order, the Court shall consider whether there is risk of harm to the complainant if the order is not made immediately.

(3) If the court makes a temporary order under this Act, the court shall order immediate service on the respondent by the police of the temporary protection order together with-

(a) the notice of the date of the hearing in accordance with Form 3 in the Schedule of this Act; and

(b) a notice to the respondent that clearly states that if the respondent does not take any steps in the proceedings, the temporary order will become final in accordance with section 18 by operation of law 90 days after the date on which it is made.

(4) Where the respondent fails to appear before the court in accordance with subsection (3)(a) and the court being satisfied on the evidence that the respondent has been served, the court may-

(b) order that the temporary order becomes final by operation of law 90 days after the date on which is made.

(5) Where a temporary order becomes a final order pursuant to subsection (4)(b), the final order comes into effect immediately.

(7) A temporary protection order may be made by the court on an ex parte basis.

(1) Where an application is made on notice to the court for a protection order and the court being satisfied on the evidence that notice has been served on the respondent in accordance with Form 3 in the Schedule of this Act, the court-

(b) make a final order and include any conditions set out in Division 4 of this Part of the Act as it considers appropriate on Form 4 in the Schedule of this Act.

(2) A final protection order shall remain in force unless varied or cancelled by the court on an application by the respondent, if there is good cause.

(3) In considering the application the court must take in account the best interests of the victim of domestic violence and dependent persons in the domestic relationship.

(1) Any protection order granted under this Act must include these conditions, namely that the respondent must not-

(d) engage, or threaten to engage, in other behaviour, including intimidation, harassment or stalking which amounts to psychological abuse of the complainant;

(e) deprive or threaten to deprive the complainant of economic or financial resources or dispose or threaten to dispose of any movable or immovable property in which the complainant has a material interest.

(f) encourage any person to engage in behaviour against a complainant where the behaviour; if engaged in by the respondent would be prohibited by the order;

(g) prohibit the respondent or complainant from approaching each other while under the influence of alcohol, kava or non-prescription drugs.

(2) Without limiting subsection (1), it is a condition of every protection order that at any time other than when the complainant and the respondent are living in the same dwelling house, the respondent must not-

(a) watch, loiter near, or prevent or hinder access to or from, the complainant's place of residence, business, employment, educational institution, or any other place that the complainant visits often; and

(b) follow the complainant about or stop or accost the complainant in any place; and

(c) where the complainant is present on any land or building, enters or remains on that land or building without the complainant's express consent; and

(d) make any other contact with the complainant (whether by telephone, electronic message, correspondence or otherwise), except such contact-

(ii) as is permitted under any order or written agreement relating to the role of providing day-to-day care for, or contact with, or custody of or access to any children.

A court shall include any or all or any of the following conditions in a protection order-

(a) prohibit the respondent from taking, damaging, destroying, burning, selling or giving away any property of the complainant;

(i) to return through a third party any specific personal property of the complainant; or

(ii) to allow the complainant to recover, have access to or make use of any specified personal property.

(c) grant the complainant temporary occupancy to a residence or specified part of it whether or not the residence is solely owned or leased by the respondent.

The court direct the respondent to surrender any weapon to the nearest police station or dispose of any weapon that has been used or threatened to be used to commit domestic violence.

A protection order shall include, where appropriate, all or any of the following conditions-

(a)a custody order granting temporary custody of any dependent child to the complainant or to another appropriate person if the court is satisfied that it is in the best interest of the child and for the safety and welfare of the child in question; or

(b)an access order to the respondent under such terms and conditions as the court considers appropriate in the best interests of the child;

(c)a maintenance order directing the respondent to pay maintenance in cash or kind or both to the complainant and any dependent children.

(1) Where the court makes a protection order, it must also make an order for urgent maintenance where it appears that the party is in need of immediate financial assistance, until further orders of the court.

(2) The court may order payment of a weekly or monthly or other periodic amount as the court considers reasonable.

(1) A complainant or respondent may, upon written notice to the other party and the Court concerned on Form 3 in the Schedule apply for the variation or cancellation of a protection order.

(2) If the court is satisfied that good cause has been shown for the variation or cancellation of the protection order and the application has been made freely and voluntarily, it may issue an order to this effect and set out the order on Form 5 in the Schedule of this Act.

(3) The Registrar or clerk of the court as the case may be must forward the order and any variations made to the original protection order and set out the order according to Form 5 in the Schedule of this Act, to the complainant and respondent.

(1) Ministries and Departments shall support and help ensure the introduction of public awareness programmes on prevention and the causes and consequences of violence in the family and in the community and based on available data.

(2) Mechanisms for preventing, reducing the prevalence of violence and responding to help victims of violence shall include, but not be limited to-

(a) sensitisation and training in human rights, gender equality and causes and consequences of domestic violence for judicial officers, police officers, health care professionals, social welfare officers, other personnel in relevant Government agencies, youth groups, media personnel and civil society organizations;

(b) educating officials including and emphasizing human rights, gender equality and the problems of gender based violence in the education curricula in all levels of education;

(c) promoting and conducting educative campaigns on the National Action Plan on violence against women and on sexual and gender based violence;

(d) supporting and setting up facilities to support victims of gender and sexual based violence,

(e) Government officials promoting studies, research, data collection on the causes, consequences and frequency of domestic violence for regular evaluation and monitoring of trends and to form the basis of national and local preventive measures, national plans of action and strategy, policies and public awareness programmes to reduce, prevent and eliminate violence; and

(f) the Minister responsible for women affairs to present an annual report to the Maneaba in Maungatabu on measures taken under this section.

(1) If a police officer suspects on reasonable grounds that a person who is or has been in a domestic relationship with another person -

the police officer may issue a Police Safety Order in Form 6 of the Schedule if the officer -

(i)does not arrest that person for an offence against any enactment involving the use of violence; but

(ii)has reasonable grounds to believe, having regard to the matters specified in sub section (2), that the issue of a Police Safety Order is necessary to ensure the safety of the victim in accordance with section 27.

(2) When considering whether to issue a police safety order under subsection (1), the police officer must have regard to the following matters:

(a) whether there is a likelihood that the person will use , or again use domestic violence against the victim or any other person in the household;

(3) A police safety order comes into force immediately on being served on the person who commits domestic violence.

(4) An order continues in force for the period specified in the order, but that period must not exceed 14 days.

(1) A police safety order issued under section 26(1) must be served as soon as practicable on the person against whom the order is issued.

(2) An order may be issued without the consent of the person at risk for whose safety the order is proposed to be issued.

(3) A police officer who issues a Police Safety Order must explain to the person against whom the order is issued-

(b)the consequences that may follow if the person against whom the order is issued contravenes the order.

(4) If an order issued under section 26(1) has not been served within 48 hours from the time of issue, the order lapses.

(5) A police safety order may be issued by a police constable or any police officer above the rank of constable.

(a) immediately surrender any weapons in his or her possession or control, used or about to be used to commit domestic violence; and

(b) vacate any land or building occupied by a person at risk, whether or not he or she has a legal or equitable interest in the land or building.

(2) It is a condition of every order that the person against whom the order is issued must not-

(b) remove, endanger or threaten to damage property or any animal belonging to a person at risk;

(1) Where a person who has been served with a Police Safety Order fails to comply with the Order or any condition of the Order, a police officer shall -

(b) apply to the Magistrate's Court on behalf of the person at risk for an emergency protection order under section 12.

(2) A person taken into custody shall, subject to subsection (3), be brought before the Magistrate's Court within 24 hours.

(3) If a person is taken into custody under subsection (1) and it is not practicable to bring the person arrested before a Magistrate within 24 hours after he or she has been taken into custody, a police officer of the rank of sergeant or above or the police officer in charge of the police station shall inquire into the case and, at or before the expiry of that period -

(c) serve the person with a summons requiring him or her to appear before the Magistrate's Court at the place and time specified in the summons.

(4) If the person who has been served with the summons under subsection (3)(c) does not attend personally at the place and time specified in the summons, the Magistrate's Court may issue a warrant to arrest him or her and bring him or her before the Court.

(1) Where there is a report of domestic violence and provided that there is sufficient evidence for doing so, every police officer handling the matter shall ensure and undertake to do all things necessary in order that a charge or information is laid with the court in order to commence prosecution of the matter in court.

(2) In addition to subsection (1), every police office shall not endeavour to provide counselling to the parties to the proceedings to reconcile or to withdraw a charge or information laid under subsection (1).

(3) In every case prosecuted before the court, it is the duty of the police officer-

(a) to provide information to the complainant about court processes and procedures in a language that he or she understands, the remedies available under this Act and the right to hire or have access to a court appointed lawyer and lodge an appeal; and

(b) where necessary, make arrangements for the complainant and the complainant's dependents to find a suitable shelter, to obtain a medical treatment or counselling service where needed.

(4) The failure of a police officer to comply with an obligation imposed under this Act shall constitute misconduct for the purposes of section 41 of the Police Service Act 2008.

(1) The Police Commissioner must, at least once a year, compile annual statistics and an annual report from the information collected under this section and forward the statistics and annual report to the Minister responsible for women affairs.

(2) The annual statistics and annual report referred to in subsection (1) shall contain the following details-

(f) the manner in which the police responded to solve the issue when the report was filed and time taken in general;

(g) action taken by the police to resolve a matter and referrals made to other services; and

(3) On receipt of the statistics and annual report to in subsection (2), the Minister responsible for Women Affairs must prepare a consolidated report which the Minister must, at least once in every year submit to relevant authorities, the advisory council for women established under section 41 of this Act and table it in the Maneaba ni Maungatabu.

(4) Any information obtained under subsection (3) which may reveal the identity of the parties must not be disclosed in the consolidated report.

(1) A duty of care is hereby established on any healthcare professional and social service provider who has been or is notified by a complainant that they have been a victim of domestic violence to -

(2) In the event the police officer receive a report under subsection (1)(iii), the police officer shall-

(a) instigate the processes required to investigate the incidence and take action; and

(b) ensure that the complainant is duly informed about the outcome of the investigations and the complainant of their rights and the remedies available under this Act.

(3) The health care professional must examine the complainant and applying the protocol established by the Ministry of Health providing for professional standards and confidential treatment and further advise the victim of support options available and refer the victim to counselling support where available.

(4) Any social service provider who has been notified by a complainant that he or she has been or are a victim of domestic violence must-

(e) advise the victim of their rights and the remedies available under this Act; and

(f) assist the victim and any dependent children where necessary by taking them to a shelter, where available and /or a house of a relative or friend and shall further liaise with the Police in ensuring that protection orders are applied for, are obtained and enforced.

(5) Any health care professional or social service provider shall not give to any other person, whether directly or indirectly, any information acquired by reason of performing duty of a health care professional or social service provider under this Act.

(2) A person who commits a domestic violence offence referred to in subsection (1) shall be punished by up to a maximum term of 6 months imprisonment or a fine of up to $250.

(3) A person who commits a domestic violence referred to in subsection (1) for a second time shall be punished by up to a maximum term of 12 months imprisonment or a fine of up to $500 or both.

(4) A person who commits a domestic violence offence referred to in subsection (1) for a third time or more shall be punished by up to a maximum term of 3 years imprisonment with a fine of up to $1000 or both.

(5) It is not a defence to a domestic violence offence under subsection (1) that the respondent has paid compensation or reparation to the complainant or to the complainant's family.

(6) If a person instigates, counsels or procures another person to commit an act of domestic violence that person is taken to have committed the act and subsection (1) applies.

(1) Subject to section 10(5) of the Constitution, in addition to prosecution under section 30 of this Act, a respondent may also be prosecuted under any other criminal laws for the time being in force for the perpetrator's acts of domestic violence if the facts disclose the commission of a criminal offence under those provisions.

(2) In relation to domestic violence, the following circumstances shall be considered as aggravated circumstances, resulting in enhanced penalties for the offender, where-

(a) domestic violence is committed against a child; or the action of domestic violence is performed in the presence of a minor;

(b) domestic violence is committed against a person with special needs, a pregnant woman or a woman who, due to whatever reason, is incapable of resisting;

(1) Proceedings under this Act are governed by the procedures, rules and regulations made under this Act and any other applicable criminal law.

(2) In cases of difficulty or doubt, a Court exercising jurisdiction in the proceedings may give directions about the procedures.

(1) Where an application is being made to the Court for a protection order, the Court must issue as soon as practicable after filing-

(a) a summon directing the respondent to appear at the time and place set out in the summons on Form 3 in the Schedule; or

(b) a warrant in accordance with subsection (2) for the arrest of the respondent.

(2) The Court may issue a warrant if the Court is satisfied that the personal safety of the complainant would be seriously threatened unless the respondent is apprehended and brought into custody.

(3) The Court must give two copies of the application and any summons or warrants to the police officer in charge of the police station nearest to where the respondent lives or was last known to live.

(4) The police officer must personally serve the application and summons or warrant on the respondent.

(5) Where service is completed by the police officer, an affidavit of service must be completed by the police officer who served the respondent and the affidavit must be promptly delivered posted or transmitted by facsimile transmission or emailed to the court registry in which the application was filed for the hearing of the matter.

(6) In the case of a warrant, the police officer must arrest the respondent and take the respondent into custody.

Where a complainant makes an oral or written application for withdrawal of a complaint against the respondent, the Court-

In proceedings for domestic violence, the prosecutor or any other person acting for the complainant, must consult with the complainant and fully explain proceedings in order to ensure that all relevant information is provided to the complainant and that the complainant fully understands the court proceedings and orders made, in order to lessen the impact of the court hearing on the complaint, any dependent children and persons living in the same household.

(b) to revoke or vary a protection order (including a variation of the conditions imposed by the order); or

(b) must be instituted within 28 days after the day on which the court's decision is made.

(a) lodging a notice of appeal in writing with the Registrar of the High Court; and

(b) serving a copy of the notice of appeal on each person who is a party to the proceedings (other than the appellant); and

(2) A notice of appeal must specify the grounds of appeal and the facts that are relied upon.

(3) Unless a judge of the High Court orders otherwise, an appeal is to be by way of re-hearing and must be in accordance with the rules of the Court.

(a) it may confirm, dismiss or vary any order to which the appeal relates, as it considers appropriate; and

(b) it may make such order or decision as it considers should have been made, and every such order or decision takes effect on and from the day on which it is made.

(2) A person aggrieved by an order or decision of the High Court may appeal to the Court of Appeal against that order or decision.

(3) Neither the High Court nor the Court of Appeal is bound by the rules of evidence in determining an appeal.

(1) The Minister responsible for the Ministry responsible for women affairs may establish an Advisory Council consisting of persons appointed by the Minister in accordance with subsection (2).

(2) The Council consists of such representatives of relevant government agencies, organisations or councils for protecting women, and other civil society groups as the Minister thinks fit.

(3) It is the function of the Council to advise and make recommendations to the Minister, either of its own motion or upon request made to it by the Minister, concerning-

(d) the adequacy of preventive measures, responses, shelters and counselling support services provided to victims of domestic violence; and

(e) any other matter relating to domestic violence and violence against women and children.

(4) The Minister must appoint one of its members to be Chairperson of the Council.

(5) A member of Council holds office for such period, not exceeding 3 years, as is specified in the instrument of appointment, but is eligible for re-appointment.

(7) The Minister may terminate the appointment of a member because of misbehaviour, or physical or mental incapacity of the member.

(10) The Council must, as soon as practicable after 31 December in each year, prepare and furnish to the Minister a report of the operations of the Council during the year that ended on 31 December the previous year.

(11) The Minister must cause a copy of a report furnished under subsection (10) to be laid before the Maneaba ni Maungatabu after the receipt of the report by the Minister.

(12) The Minister may determine the procedures for the meeting of the Advisory Council, the rate of the attendance allowance for the members of the council, and such other matters as are required to give effect to this section.

(1) A court hearing an application for a protection order is not open to the public.

(2) Subject to subsection (3), a person may not be present during the hearing of an application unless he or she is-

(3) A complainant is entitled to have a person with him or her throughout the proceedings to provide support and other assistance.

(1) The Secretary for the Ministry responsible for women affairs must at least once a year, compile annual statistics and an annual report for the information collected under this section and forward the statistics and report to the Minister responsible for women affairs.

(2) The annual statistics and annual report referred to in subsection (1) shall contain the following details-

(a) the manner of victims applying to the courts for protection orders each year;

(b) the types of domestic violence incidences that come before the courts each year;

(d) the number of self referrals and referrals made by the courts and other agencies to counselling services and shelters each year; and

(e) the effectiveness of all measures adopted by Government agencies to combat domestic violence.

(3) On receipt of the statistics and annual report referred to in subsection (2), the Minister responsible for women affairs must prepare a consolidated report which the Minister must, at least once in every year, submit to relevant authorities, the Council established under section 42 of this Act and table in the Maneaba ni Maungatabu, but any information which might reveal the identity of the parties must not be disclosed in the consolidated report.

The Chief Justice may from time to time make rules providing for and in relation to-

(b)applications for protection orders made by telephone and other similar facilities;

(d)data collection on the outcomes of domestic violence cases and orders of protection, including any violations; and

The Minister may make regulations not inconsistent with this Act for all matters required or necessary to give effect to this Act.

Form 1 Application for protection order
Form 2 Application for protection order by persons on behalf of complainant
Form 3 Notice of Proceedings and Summons
Form 4 Protection Order
Form 5 Order varying, cancelling protection order
Form 6 Police Safety Order

APPLICATION FOR EMERGENCY OR TEMPORARY, PROTECTION ORDER
(Delete whichever inapplicable)

[If respondent does not take steps in the proceedings for temporary protection order, the order becomes final]

Between A.B.	of	Complainant
and C.D.	of	Respondent
I ....................................... of ............................................... being in a domestic relationship with the Respondent as the Respondent's (state relationship) .............................. hereby apply for a ........................ protection order against the Respondent on the grounds that: *(State grounds here)*
		.......................... Complainant
Filed on this ......... day of ...... 20....
		Signature ..................... Court Clerk at __________

APPLICATION FOR EMERGENCY, TEMPORARY PROTECTION ORDER BY PERSONS ON BEHALF OF THE COMPLAINANT
(delete whichever inapplicable)

[If the respondent does not take steps in the proceedings for temporary protection order, the order becomes final]

Between A.B. of		Applicant
and C.D. of		Respondent
1. I ............................................... of ..................... applying on behalf and with the consent of ............................... (complainant) of ................... (address) who is in a domestic relationship ............................ with (name of Respondent) of ................................ (address) as the Respondent's (state relationship) ................ 2. Hereby apply for a protection order against the Respondent on the grounds that: 3. (State grounds here)
	................................... Signature of Applicant (applying on behalf of Complainant)
		................................. Signature of Complainant
Filed on this ......... day of ...... 20....
		Signature ..................... Court Clerk at __________

		No. ....... of 20
Between A.B. of		Complainant
and C.D. of		Respondent
To the Respondent ....................... (Name).... at ........................... (address) 1. An application under section ................. (include relevant section) for a protection order, or under section .................... for a variation, or cancellation of protection order (delete where inapplicable) has been made against you by .................... of ...................... (address) 2. A copy of the application is attached. The application has been set down for hearing on ........................ 20.......... at .................. (place) at ............ hours. 3.You are hereby summoned to appear at the Court at ...................... on the .............. day of ............ 20.....at the .............. (time) to answer the complainant / applicant. If you do not attend at the hearing of the complaint/ application, the Court may – (a) deal with the complaint/ application in your absence; or (b) issue a warrant for your arrest to be brought before the Court.
Dated .......................... 20....
	................................... Court Clerk at ________________________
(Note:* Copy of Application attached)*

		No. ..... of 20
Between A.B. of		Complainant
and C.D. of		Respondent
The .................. Court at ..................... having heard the complaint /application (delete whichever inapplicable) made by ....................... [name of complainant] of ......................... under section ....... of the Kiribati Te Rau N Te Mwenga Act in respect of the conduct [or threatened conduct] of ...................... [name of respondent] towards .............................. [name of person(s) to be protected]: *Now the Court on this day orders that, for ................. [period]* .............[*name of respondent] not to engage in the following conduct:* ............................................................................................................ ............................................................................................................ ............................................................................................................ And to comply with the following orders: ............................................................................................................ ............................................................................................................ ............................................................................................................
Dated .......................... 20....
	................................... (Judge/Magistrate)

		No. of 20
Between A.B. of		Complainant
and C.D. of		Respondent
1. The .................. Court at ..................... having heard the application made by ....................... [name*] of ......................... [address] under ............ [section] ....... of the Kiribati Te Rau N Te Mwenga Act and on .......................... [date of original order], issued the following orders against the respondent as specified on the attached order [*attach copy of original order]. 2. Now the Court on the application of ................. (name) *of........................... (address) and having heard the [complainant or respondent] this ................. day of 20.....orders that the Protection Order be (Varied/Cancelled* )(**delete where inapplicable) as follows:¹ 3. [specify, details of variation/ cancellation here]
Dated .......................... 20....
	................................... (Judge/Magistrate)
___________________________ ¹

To [full name, address, date of birth of person against whom the Police Safety Order is issued].

This Police Safety Order is issued against you.

1.Purpose of Order
The purpose of this order is to ensure the protection of a person or child with whom you are, or have been, in a domestic relationship.

2.This order protects the following persons -
[Full name of person to be protected and full name of each child residing with the person named above]
.....................................................................................................
.....................................................................................................
.....................................................................................................
.....................................................................................................

3.Commencement of order
The order comes into force immediately after a copy is served on you.

4.Duration of order
This order continues in force for [number] days.* It expires on [date and time].*
*Select one.

5.Effect of order
You must immediately -

(a)surrender to a police officer any weapon in your possession or control used to threaten or commit domestic violence;

(b) temporarily vacate for the duration of the order any land or building occupied by the protected person and children whether or not you have a legal or equitable interest in the land or building.

1.Conditions of order
It is a condition of this order that you must not —

(a)threaten to or physically or sexually abuse the protected person or children;

(b)damage, or threaten to damage any property of the protected persons;

(c)intimidate, harass or psychology abuse the protected persons or engage any person to engage in such behaviour against the protected persons;

(d)watch, loiter near, prevent or hinder access of protected persons to and from the place of residence, business, employment or educational institution;

(e)stop or accost a person protected by this order;

(f)make any other contact with protected persons except such contact as is reasonably necessary in any emergency.

1.Consequences of breach of order
If you refuse or fail to comply with this order or any condition of this order, you may be taken into custody and brought before a Magistrate's Court.

An application may then be made to bring you before a Magistrate's Court.

A Magistrate's Court may -

(a)direct that another Police Safety Order be issued against you or

(b)issue under section 17 a temporary protection order against you.

Date:
Issued by:
[Print full name and sign]

Te Rau N te Mwenga Bill introduces a new framework law to protect victims of violence in domestic relationships. It provides for an offence of domestic violence and introduces protection orders and police safety orders. It also introduces preventive measures such as education and public awareness programmes to reduce, prevent and eliminate violence. It establishes a Council to monitor the implementation of this Act and make provisions for funding support for victims of violence such as shelters, training, preventative and public awareness programmes.

Objectives of the Bill is shown in Section 3 however the main objects are to maximise the safety of victims of violence and dependent children

Section 4 defines "domestic violence" — it is expanded to include physical abuse, sexual abuse, psychological and verbal abuse, damage to property and including threats of abuse.

Section 5 sets out the domestic relationship for the purpose of this Act — it is expanded to include not only a spouse but former spouse, partner (de facto relationships) and those who have or had a close personal relationship (boyfriend/girlfriend).

Section 6 deals with conferral of Jurisdiction, the Magistrate Courts has the jurisdiction and also is allowed to hear and decide a proceeding that has been started in a Magistrate court in any other district.

Section 7 and 8 deals with registration of counsellors — Working with victims of domestic violence and families who are affected by violence would require counselling intervention. The reasons for registration ensure accountability and prevention of unethical practice when working with the most vulnerable and dis-empowered.

Section 11 deals with who can apply for protection orders — it expands the range of persons, apart from the complainant, who can apply for a protection order on behalf of the complainant who is unable to apply due to injury or fear. Where a person is unable to give consent and evidence suggests that protection is needed, application may be made on behalf of such persons if it is in that person's best interest.

Section 12 sets out the form for protection order — it can be made orally or in writing, by telephone, radio or by fax, telex, text message or email. However it must be reduced to writing using Form 1 in the Schedule. If made by other person on behalf of the complainant, Form 2 in the Schedule is used.

Section 13 allows the court to issue a protection order in family or criminal proceedings, after considering the safety, health and well-being of the complainant and the interest of any person dependent on the complainant.

Section 14 gives the court power to make protection orders upon being satisfied that the respondent is using or has used domestic violence and it is necessary for the protection of the applicant, or a child or any other member of the family living in the same household

The court must also have regard to the opinion of the applicant, or members of the applicant's family of the nature and seriousness of the behaviour to which the application is made and its effects on the child

Section 15 — Protection orders is sometimes used as method of continuing the victimisation of the complainant and Section 15 sets out the procedure for cross application and confirms the principal that victims of domestic violence are protected.

Section 16— Emergency protection order —this application may be used in times of crisis by the victim for immediate protection from domestic violence. The order is limited to 28 days which will enable a victim to seek counselling or make arrangements that could be life changing. Victims need a period of time to consider the options available to them. If there is no further application to the Court, this order lapses at the end of 28 days.

Section 17 — Temporary Protection Order is valid for 90 days and if the respondent does not take any action, the order becomes final at the end of 90 days.

Section 18—A Final order has an indefinite time-frame and may be varied or cancelled under Section 24.

Section 19— provides for standard conditions in protection orders. The conditions range from prohibiting the perpetrator from physically assaulting, forcibly confining or depriving the victim of adequate food, water, clothing, shelter or rest. It also prohibits the perpetrator from engaging in sexual conduct which violates the victim's sexual integrity and autonomy. It also prohibits the perpetrator from depriving the victim of financial resources, medical or personal necessaries required for the victim's health and well-being. Conditions of the protection orders could also include the prevention of harassment and stalking, entering the victim's residence without consent and preventing the psychological or verbal abuse of the victim.

Sections 20— provides for conditions relating to property and accommodation. Under this Section, the Court may grant the victim temporary occupancy to the residence or to a specified part of it. This provision makes it clear that the victim and children are not to be ousted from the residence, even if an application is made by the defendant to remove them. This provision is designed to minimise the disruptions and upheavals caused to the lives of victims and dependent children.

Section 21 — provides for conditions relating to weapons and directs the defendant to surrender any weapon that has been used to commit domestic violence.

Section 22 — provides for custody, access and maintenance orders. With respect to custody -in the event the applicant is not able to care for a dependent child/children due to illness, injury or for any other factor, the Court may order custody of the child/children to another appropriate person who will ensure their safety and well-being of those children.

Section 23 — provides for urgent maintenance orders. Lack of financial support for basic needs will further jeopardise the health and well-being of victims. The Courts have broad powers to safeguard victims from further injury and violence.

Section 24 deals with variation and cancellation of protection orders — either parties can apply for it upon satisfaction of the Court that good cause has been shown and it was made freely and voluntarily.

Section 25 calls for coordination amongst government agencies with support from civil society groups, to establish and introduce sensitisation and public awareness programmes, human rights and gender training to eliminate domestic and family violence. Emphasis on human rights and gender equality in education curricula at all levels; and the promotion of studies, research and the collection of data on the causes, consequences and frequency of domestic violence. Comprehensive preventive measures and clear effective strategies have the potential to reduce and eliminate violence within domestic relationships and in the community.

Sections 26 to 29 The Section introduces Police safety orders. As police officers are located on all islands, these Police Safety Orders are a quick intervention strategy to stop the violence. The 14 day duration of a police safety order can assist parties to cool down, seek counselling and advice and give them time to reflect on issues surrounding their lives.

Section 30 imposes a duty on the prosecutor to provide information to the victim to lessen the impact of the trial and prohibits the counselling of the victim to reconcile or to withdraw the case.

Section 31 requires the Minister to provide an annual report on activities undertaken on domestic violence to the Maneaba ni Maungatabu. Reporting on actions taken will keep this problem in the public view and measures to reduce and eliminate the violence can be assessed and monitored.

Section 32 imposes a duty of care for healthcare professionals and social service providers. Professional conduct, confidentiality and a non threatening environment are central principles that define the relationship between human service providers and victims of violence.

Section 33 creates a domestic violence offence and an offence for the breach of a protection order. The penalties are increased for offences that are aggravated in nature (Section 34(2). The penalties are increased for repeat offenders to show that domestic violence is not tolerated in Kiribati.

Under Section 34, a perpetrator may also be prosecuted under other criminal laws if the perpetrator's act of violence discloses a criminal offence under those other provisions, provided that it does not constitute double jeopardy (Section 10(5) of the Constitution of Kiribati).

Section 37 deals with the withdrawal of complaint. Withdrawal of complaints may arise from a number of reasons including the lack of financial support should the perpetrator be incarcerated, the further deterioration of the relationship between the parties and the family members, or duress from other family members or the perpetrator to withdraw the complaint or fear of further violence. Where an application for withdrawal comes before the Court, the Court is required to investigate the reasons for withdrawal, to ensure that the safety of the victim and any dependent children are considered.

Sections 39 — 41 provides for Appeal procedure and allows for the decision by the Magistrate court under this act to be appeal-able to the High Court.

A Council is established to provide oversight of the implementation of this Act. It also promotes inter-agency cooperation of eradicating domestic violence. The functions of the Council in Section 43(3) involves the making of recommendations on the implementation of the Bill; the research and monitoring of the prevalence of violence in the community and the adequacy of services to victims of domestic violence. The monitoring of the implementation of this Act is a mandatory function to ensure information is gathered to assess compliance.

This Part provides for Court proceedings be closed to the public (c. 45); gives the Chief Justice power to make rules for court proceedings under this act (c. 46) and the Ministry powers to regulations (c.47) and it also provides for data collection, monitoring and reporting (c. 44).

Published by exhibition at the Maneaba ni Maungatabu this 10 day of December, 2014

Kiribati Sessional Legislation

Te Rau N Te Mwenga Act 2014