DISCLAIMER: The use of technology-facilitated abuse is a developing area of the law. The legal information, examples and scenarios contained in the guide are intended to explain the law as it stands at publication in general terms only and are not legal advice. They cannot be relied upon or applied by readers in their own cases. Each set of circumstances needs to be looked at individually. You should seek legal advice about your own particular circumstances.
Intervention Orders
The Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the ‘Act’) is the legislation in South Australia that allows the courts to make orders protecting people from abuse.
A person who is experiencing domestic violence (‘protected person’) may apply to the Magistrates Court of South Australia for an Intervention Order (‘IO’). Applications are made through the police who can also make temporary orders that last until the matter goes to court (interim intervention order). An IO can protect a person by ordering the person against whom the IO is made (‘defendant’) not to commit further acts of domestic violence against the protected person.
It’s important to note that an IO is a civil order, meaning it is not a criminal charge. However, an application for an IO may be accompanied by related criminal charges and criminal penalties may apply if an IO is breached.
The Magistrates Court may grant an IO against the defendant for the protection of the protected person if it is satisfied that:
- It is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
- Issuing the order is appropriate in the circumstances.
Where can I find this information in the Act?
Please see section 6 of the Act.
Can technology-facilitated stalking and abuse be a form of domestic violence?
Yes, technology-facilitated stalking and abuse may be a form of domestic violence.
Technology-facilitated stalking and abuse can be a form of domestic abuse under the Act if the defendant and protected person are or have been in an intimate personal relationship, or a family relationship, and the defendant’s behaviour results in, or is intended to result in:
- Physical injury
- Emotional or psychological harm
- An unreasonable and non-consensual denial of the protected person’s financial, social or personal autonomy
- Damage to the protected person’s property.
Emotional or psychological harm includes mental illness, nervous shock and distress, anxiety or fear that is more than trivial. The Act includes some examples of acts of abuse that may result in, or be intended to result in emotional of psychological harm. The list includes technology-facilitated domestic violence, some examples are:
- Engaging in behaviour designed to coerce the person to engage in sexual activity
- For example sending a person text messages blackmailing them for sex
- Following the person
- For example using GPS tracking to physically follow someone
- Giving or sending offensive material to the protected person, or publishing or transmitting it by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the person
- For example a person’s abusive ex-partner posts a picture featuring him killing an animal onto the woman’s Facebook wall
- Communicating with the person, or to others about the person, by way of mail, telephone (including associated technology), fax or the Internet or some other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the person
- For example emailing intimate photos of a person to that person’s work colleagues, or repeatedly contacting a person by telephone, SMS message, email or social networking site without the person’s consent
- Keeping the person under surveillance
- For example installing spyware on a person’s phone or computer without consent
The Act also includes some examples of acts of abuse that may result in, or be intended to result in unreasonable and non-consensual denial of a person’s financial, social or personal autonomy. The list includes technology-facilitated domestic violence, some examples are:
- Preventing the person from making or keeping connections with the person’s family, friends or cultural group
- For example, preventing a person from contacting their friends or family overseas via telephone or email; or a husband sending his wife’s family overseas an email from her account pretending to be her, saying she is disowning them and never wants them to contact her again
- Exercising an unreasonable level of control and domination over the daily life of the person
- For example, demanding to see an intimate partner’s call logs, text messages, personal emails and internet browsing history
Domestic violence can include where a person commits or threatens to commit any of the above acts of abuse. It can also include where a person causes or allows another person to do one of the above acts or to take part in the act.
Where can I find this information in the Act?
Please see section 8 of the Act.
When is it ‘domestic abuse’?
Abuse is defined as ‘domestic abuse’ where the defendant and protected person are or were ‘in a relationship’. Two persons are in a relationship if:
- They are married
- They are domestic partners, meaning a registered relationship, or a close personal relationship in which:
- The parties lived together continuously for at least three years, or
- The parties lived together for a collective period of three years out of four years, or
- The parties had a child together (whether or not the child is still alive).
(See section 11A Family Relationship Act 1975 (SA))
- They are in some other form of intimate personal relationship in which their lives are interrelated and the actions of one affects the other
- Regardless of age, one party is the child, stepchild or grandchild, or is under the guardianship of:
- The other party, or
- A person who is or was formerly married to, domestic partners with or in an intimidate relationship with the other party
- One party is a child (under 18) and the other acts in the place of a parent
- One party is a child (under 18) who normally or regularly resides or stays with the other
- They are siblings through blood, marriage, a domestic partnership or adoption
- They are related according to Aboriginal or Torres Strait Islander kinship rules or are both members of some other culturally recognised family group
- One party is the carer of the other
It is important to note the Act also covers situations in which one of these above relationships does not exist. In such circumstances, the abuse is called ‘non-domestic abuse’. Intervention orders can still be applied for, however ‘domestic abuse’ is prioritised by the court. If a person applies for an IO for non-domestic abuse (and the police did not make the application), the court must consider whether the matter may be resolved through some other means, such as mediation.
For example: one party becomes obsessed with the other party and unilaterally decides they are in a relationship. The obsessive party sends the other party a large volume of unwanted messages over text, email and social media and repeatedly calls their phone. This may be a form of non-domestic abuse.
Where can I find this information in the Act?
Please see sections 8, 9 and 21 of the Act.
Who can apply for an Intervention Order?
An application for an IO may be made by:
- The police
- A person seeking protection or their representative
- A child themselves (if over 14 years old) who may hear, witness or be exposed to abuse, or their parent, guardian or representative
The police may make an application on behalf of someone they suspect the defendant will commit an act of abuse against them, meaning, even if a person does not want an IO made for their protection, the police can still apply for an order protecting them.
Applying for an IO
To apply for an IO for their (or their child’s) protection, they can go to the police and make a statement. The police will then assess whether there are grounds for an IO. If there are grounds, a police prosecutor will take the matter to court for the protected person.
If the police refuse to act or a person feels uncomfortable going to the police, they can apply directly to the court. More information is available online at https://lsc.sa.gov.au/resources/InterventionOrdersFactsheet.pdf.
Where can I find this information in the Act?
See sections 7, 18 and 20 of the Act.
How can an Intervention Order protect a person from technology-facilitated stalking or abuse?
The conditions in an IO depend on the particular circumstances of the matter. An IO can prohibit and restrain the defendant from taking from certain actions, as well as impose requirements on the defendant to take specific actions.
A defendant must follow the conditions of an IO. If the defendant breaks any of the IO conditions (called contravening or breaching the IO), it is an offence and the police can lay charges against the defendant.
On the current IO application form, there are set conditions the applicant can apply for which prohibit technology-facilitated domestic violence. These include that the defendant must not:
- Assault, threaten, harass or intimidate the protected person(s)
- Follow or keep the protected person(s) under surveillance
- Contact or communicate with the protected person(s) either directly or in any way (including phone, letter, cards, SMS, messages, email, facsimile etc.).
- Publish on the internet, by email, SMS or other electronic means any material about the protected person(s)
- Cause, allow or encourage another person to do anything forbidden by this order.
The applicant for the IO can also apply for ‘other’ conditions that are specific to their situation and which will make the protected person feel safe.
Suggested wording to cover image-based abuse situations
The must not directly or indirectly publish, share or threaten to publish or share images or videos of the affected family member of an intimate nature.
Suggested wording to cover ‘tracking/surveillance device’ situations
The respondent must not attempt to locate, ask someone else to locate, follow or keep the affected family member under surveillance.
Where can I find this information in the Act?
See section 12 of the Act.
How long does an Intervention Order last?
An IO is ongoing and continues in force until it is revoked. The court may not set an expiry date or otherwise limit the duration of an IO.
If a defendant wishes to have an IO varied or revoked after it has been made, they cannot apply for at least 12 months (or longer as ordered by the court).
Where can I find this information in the Act?
See sections 11 and 15 of the Act.
What if a person is in urgent need of protection?
If it appears to a police officer that there are grounds for issuing an IO, and the defendant is present before the police or in custody, the officer may make an interim IO for the protection of the other party/parties.
When a person applies privately (not through the police), the court will hold a preliminary hearing for her matter as soon as practicable and without summoning the defendant to attend. At this hearing, the court may decide to grant an interim IO.
An interim IO takes effect as soon as it is served on the defendant and may contain the same conditions as in a final IO. It usually lasts until the court can hear more evidence and decide whether to make a final order for an IO or not.
Where can I find this information in the Act?
See sections 18, 21 and 23 of the Act.
What if a person breaks the conditions of an Intervention Order by engaging in technology-facilitated stalking or abuse?
When a person does not obey the conditions of an IO, this is called a breach or contravention of the IO.
It is an offence to contravene an IO or an interim IO. The maximum penalty is imprisonment for 2 years.
All contraventions should be reported to the police so they can investigate.
If the protected person aids, abets, counsels, or procures the defendant to engage in behaviour that contravenes the IO, the protected person will not have committed an offence.
For example: there is an order prohibiting the defendant from contacting the protected person in any way. If the protected person sends the defendant a text message and he replies, he has breached the order and she cannot be charged with an offence.
Where can I find this information in the Act?
See section 31 of the Act.
Effect of Domestic Violence Orders interstate
From 25 November 2017, a Domestic Violence Order made in any Australian state or territory is now automatically recognised and enforceable Australia-wide.
A Domestic Violence Order issued prior to 25 November 2017, can be ‘declared’ a nationally recognised Domestic Violence Order by any local court in Australia.
Find more information about the National Domestic Violence Order Scheme here: https://www.ag.gov.au/ndvos.
Gathering evidence to prove technology-facilitated stalking or abuse
Sometimes it can be difficult to prove technology-facilitated stalking or abuse. Some tips for gathering evidence to show an IO is necessary or an IO has been contravened include:
- Do not delete text messages, voicemail messages, photos
- Try and save any evidence to a computer/USB flash drive
- Use screenshots and save the image as the date & time it was taken. If taking screenshots of websites, always include the URL in the screenshot
- Keep a diary or voice notes of incidents including dates and times
- Consider giving police written permission to access your phone, computer, Facebook, email account etc. if a matter is being investigated
Note: certain conduct in relation to technology-facilitated stalking or abuse may constitute a criminal offence. Please see the Legal Guide to Image-based Abuse in SA, Legal Guide on Relevant Criminal Offences in SA and Legal Guide to Surveillance Legislation in SA for further information.