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[2025] QSC 299
General information, not legal advice.
Supreme Court of Queensland
2025-11-11
Ryan J
Original judgment source is linked above.
MAGISTRATES - APPEAL AND REVIEW - QUEENSLAND - ORDERS TO REVIEW - where the applicant was named as the respondent to a police protection notice (PPN) - where at the hearing of the application the Magistrate made a temporary protection order (TPO) naming the applicant as the respondent - where the PPN was issued without prior contact with the applicant, rendering it non-compliant with section 101(1)(b) of the Domestic and Family Violence Protection Act 2012 (Qld) - where the applicant applied to the Magistrate to have the TPO set aside on the basis that the PPN was invalid because of its non-compliance - where the Magistrate dismissed the application - where the applicant applies to this court for a declaration about the validity of the PPN and an order for certiorari setting aside the TPO - whether it was intended that a PPN, which did not meet the pre-conditions for its issuance by failing to comply with section 101(1)(b) would be invalid as an application for a protection order
Judicial Review Act 1991 (Qld), s 12
KAV v Magistrate Bentley and Anor [2016] QSC 46, cited
LBU v QPS & Anor [2020] QDC 279, approved
LSA v State of Queensland [2025] QCA 61, distinguished
McNab Constructions Australia P/L v Queensland Building Services Authority [2013] QSC 057, distinguished
MJE v Strofield (Magistrate) & Another [2021] QSC 126, cited
[1] In response to a report by the aggrieved about the applicant's domestic violence, a police officer issued a police protection notice (PPN) under the Domestic and Family Violence Protection Act 2012 (Qld) (the Act), naming the applicant as the respondent. Under the Act, the PPN was "taken to be" an application for a protection order. Taking it as such an application, the first respondent Magistrate made a temporary protection order (TPO) against the applicant. Months after the TPO was made, the applicant applied to the Magistrate to have it set aside on the basis that the PPN was invalid. He was unsuccessful in that application. He then brought this application under the Judicial Review Act 1991 (Qld) (the JR Act) for -
(a) a declaration that the PPN was invalid because of its non-compliance with section 101(1)(b) of the Act;
(b) an order setting aside the TPO; and
(c) an order setting aside the orders made by the first respondent Magistrate which upheld the validity of the PPN and the TPO.
[2] As put by Henry J in KAV v Magistrate Bentley and Anor [2016] QSC 46 at [38], the relief sought by the applicant is "pursuant to pt 5 of the Judicial Review Act 1991 (Qld) which in effect continues the court's power to grant a relief or remedy of the kind previously provided by way of a writ of mandamus, prohibition or certiorari and confers the right to make application for a declaration even if a prerogative order is not sought".
[3] As is customary in applications of this kind, the first respondent indicated that he would abide the order of the Court, subject to any question of costs, and he was excused from participation at the hearing.
[4] I was concerned that, although it was framed as an application for a declaration, this application sought indirectly the review of the decision of the police officer to issue the PPN in response to domestic violence - a decision which would not be amenable to review: see, for example, MJE v Strofield (Magistrate) & Another [2021] QSC 126, at [32] - [34].[1] I asked the applicant and the second respondent for written submissions on that issue. Both contended that it was appropriate for me to determine the application as framed, so I did.
[5] For the reasons set out below, I refuse the application.
[6] In my view, the declaration sought would be contrary to a proper, purposive and consistent construction of the Act. The PPN was properly taken to be a valid application for a protection order and the TPO made on the strength of it is equally valid. Additionally, the applicant failed to demonstrate the utility of this application in circumstances where, if he succeeded before me, the police (or the aggrieved) could simply bring another application for a protection order.
[8] As an aside, I note that the approved form for a PPN (QP0899) does not contain the advice required by section 105(1)(i) of the Act, which is something the second respondent may wish to address.
Police Protection Notices under the Domestic and Family Violence Protection Act 2012
[9] The following provisions of the Act are of particular relevance to this application.
[10] Section 100 of the Act permits a police officer, who -
to do a number of things, including (but not only) -
[11] The relevant pre-requisites to the issuing of a PPN in this case are those set out in section 101 of the Act. The parties accepted that there was non-compliance with section 101(1)(b) in the present case. Section 101 states:
"101 Police officer may issue police protection notice
(1) A police officer may issue a notice (a police protection notice) against a person (the respondent) if the police officer -
(a) reasonably believes the respondent has committed domestic violence; and
(b) if the respondent is not present at the same location as the police officer - has made a reasonable attempt to locate and talk to the respondent, including by telephone, to afford the respondent natural justice in relation to the issuing of the police protection notice; and
(c) reasonably believes that no domestic violence order or recognised interstate order has been made or police protection notice issued that -
(i) names the respondent as a respondent and another person involved in the domestic violence mentioned in paragraph (a) as the aggrieved; or
(ii) names the respondent as the aggrieved and another person involved in the domestic violence mentioned in paragraph (a) as a respondent; and
(d) reasonably believes a police protection notice is necessary or desirable to protect the aggrieved from domestic violence; and
(e) reasonably believes the respondent should not be taken into custody under division 3.
(2) This section is subject to sections 102 and 103."
[12] Section 102 requires an issuing police officer to obtain the approval of a supervising police officer before issuing the PPN. Section 103 prohibits cross-notices.
[13] Section 105 of the Act provides for the form/content of the PPN. It must include advice to the respondent that, under section 112 of the Act, the PPN is taken to be an application for a protection order made by a police officer. It must also state the date and time for the hearing of the application at the local Magistrates Court and advise the respondent that, if they do not appear at the court at that date and time, the Magistrate may adjourn the matter and make a TPO in the meantime, which is what occurred in the present case.
[14] The date and time for the hearing of the application for the protection order at the local Magistrates Court must be within 5 business days after the notice is issued - if the court sits at least once a week. If the local Magistrates Court sits otherwise - then the date must be the next sitting date of the court: section 105(2). But if that date is more than 28 days after the notice is issued, then - in effect - the matter will be mentioned in another Magistrates Court within 28 days. At that mention, a TPO may be made, whether the respondent attends the mention or not: section 105(1)(l). These provisions ensure that the PPN operates as a protective measure only for a short time before its review by a Magistrate.
[15] The standard conditions of a PPN include a condition that the respondent be of good behaviour towards the aggrieved and not commit an act of domestic violence against the aggrieved: section 106.
[16] Section 110 of the Act sets out the content of the explanation a police officer must give a respondent when they serve a PPN on a respondent. The applicant contrasted section 110(4) with the provisions of section 101 which do not include an equivalent. Section 110 states:
(a) serves a police protection notice on a respondent; or
(b) tells a respondent about a police protection notice as mentioned in section 113(1)(b); or
(c) gives a copy of a police protection notice to an aggrieved; or
(d) gives a copy of a police protection notice to a parent of a child, as required under section 188.
(a) explain to the person -
(i) the police protection notice; and
(ii) the grounds on which the police officer who issued the notice reasonably believed that domestic violence has been committed; and
(iii) the reasons the police officer who issued the notice imposed the conditions of the notice; and
(b) take reasonable steps to ensure the person understands the nature and consequences of the notice.
(3) Without limiting subsection (2), the police officer must explain -
(a) the purpose and effect of the notice, including, for example, that -
(i) the notice may be enforceable in other States and New Zealand without further notice to the respondent; and
(ii) if the respondent has a weapons licence, or is a body's representative as mentioned in the Weapons Act, section 10(3), the licence or endorsement as the body's representative is dealt with by the Weapons Act, section 27A or 28A; and
(iii) under section 83(2), a person against whom a police protection notice is issued is not exempt from the Weapons Act, despite the Weapons Act, section 2; and
(b) the duration of the notice; and
(c) the conditions of the notice, including the behaviour the respondent is prohibited from engaging in under the conditions; and
(d) the type of behaviour that constitutes domestic violence; and
(e) the consequences of the respondent contravening the notice; and
(f) that the aggrieved cannot consent to the respondent contravening the notice; and
(g) that the notice is taken to be an application for a protection order made by a police officer; and
(h) that the hearing of the application for the protection order will be heard at the local Magistrates Court for the respondent at the date and time stated in the notice; and
(4) Failure to comply with this section does not invalidate or otherwise affect a police protection notice."
[17] By section 111 of the Act, the PPN is to be filed in the local Magistrates Court for the respondent. It must be served on the respondent, in accordance with section 111(4)(b).
[18] By section 112(1) of the Act, the PPN "is taken to be an application for a protection order made by a police officer" - that is, in context, an application made under section 100(3)(a).
[19] By section 113(1), the PPN takes effect when it is served upon the respondent, or a police officer tells a respondent about the PPN and its conditions.
[20] Under section 113(3), it continues in force until (among other possibilities) if, on an application for a TPO made under section 129(2), a magistrate decides to make a TPO - the TPO is served on the respondent or otherwise becomes enforceable under section 177.
[21] Section 44 of the Act sets out the circumstances in which a court may make a temporary protection order. The second respondent referred me to section 44(2) to argue that a less than fully compliant PPN could operate as an application for a protection order under section 112.
"44 When court may make temporary protection order
(1) A court may make a temporary protection order if -
(a) the court adjourns the hearing of an application for a protection order; or
(b) ...; or
(c) ...; or
(d) ...; or
(e) ...; or
(f) ....
(2) For subsection (1)(a), if the application is a police protection notice taken to be an application for a protection order under section 112, it does not matter whether or not the nature of the protection order sought and the grounds on which the order is sought -
(a) are stated in the police protection notice; or
(b) are stated in a statement mentioned in section 111(3) that has been filed under that section; or
(c) have otherwise been made known to the court."
[22] Offences against the Act (as it stood at the relevant time) are set out in Part 7. Section 178 (which is within Part 7) states:
(1) This section applies to a respondent in relation to whom a police protection notice is in force.
(2) The respondent must not contravene the police protection notice.
Maximum penalty - 120 penalty units or 3 years imprisonment.
(3) A court hearing proceedings for the prosecution of an offence against subsection (2) must consider whether the police protection notice was issued in substantial compliance with part 4, division 2.
(4) If the police protection notice took effect under section 113(1)(b) [that is, when the respondent was told about it by a police officer], the prosecution bears the onus of proving, beyond reasonable doubt, that the respondent has been told by a police officer about the existence of a police protection notice or about a condition of the notice the respondent is alleged to have contravened."
[23] For the purposes of this application, it is necessary to understand the requirements for a valid application for a protection order under the Act so that they may be contrasted with what the applicant says are the requirements for the validity of a PPN taken to be an application for a protection order.
[24] Section 25 lists the persons who may make an application for a protection order. A police officer who does not issue a PPN, but instead acts under section 100(3)(a), falls within section 25(1)(c). The application is made to the Magistrates Court: section 32. Relevantly, it must be in the approved form; state the grounds upon which it is made; state the nature of the order sought; and be filed in the court.
[25] The Act does not require the respondent to be notified of the prospective application before it is made for "natural justice" purposes or otherwise. The application must be served personally on the respondent: section 34 - but under section 36 an applicant may ask the clerk of the court to arrange for an application to be heard by the court before it is served on the respondent, to allow the court to make a temporary protection order if the circumstances warrant it (see also section 40).
[26] On 1 July 2024, the aggrieved reported her domestic violence concerns about her ex-husband (the applicant) to a police officer, Senior Constable Cox (SC). The aggrieved also raised concerns about the applicant being in possession of firearms. SC's investigations revealed that there was a risk that the applicant was in possession of unregistered firearms. A search warrant had been executed at his residence on 16 November 2023. Although police did not find firearms, they found a live round of ammunition and a spent casing from a rifle (22LR) and 4 used casings from a 223 Remington. The applicant denied all knowledge of the ammunition.
[27] SC formed a reasonable belief that domestic violence had been committed. After a discussion with her supervisor, and with the approval of a senior officer, at 6.55 pm on 1 July 2024, SC issued a PPN naming the applicant as respondent; his ex-wife as the aggrieved; and their three children as named persons.
[28] Because of SC's concerns about the applicant being in possession of unregistered firearms, and the sensitive nature of the information provided by the aggrieved, SC determined to issue the PPN without prior contact with the respondent, which the second respondent accepted rendered the PPN non-compliant with section 101(1)(b) of the Act.[2]
[29] On 2 July 2024, at 8.49 am the applicant was served with a copy of the PPN. The PPN stated that the applicant was to appear at the "court hearing of this application" at 9 am on 2 July 2024. The PPN stated, "If you fail to appear before the Court, the Court may make a domestic violence order against you in your absence or adjourn the matter and may, in the meantime make a temporary protection order or order the issue of a warrant for you to be taken into custody by a police officer and brought before the Court".[3]
[30] Sometime before 9:38:06 am,[4] in the applicant's absence, the Magistrate made a TPO naming the applicant as the respondent; his ex-wife as the aggrieved; and their three children as persons also protected by the TPO.
[31] About seven months later, on 5 February 2025, the applicant applied to the Magistrate who made the TPO to have the PPN declared a nullity on the basis that the pre-condition to its issuance in section 101(1)(b) had not been met and consequently, to have the TPO set aside. The Magistrate dismissed the application and the TPO remained on foot.
[32] In dismissing the application, the Magistrate relied upon the decision of LBU v QPS & Anor [2020] QDC 279 (and other matters). The applicant contended that that decision was "plainly wrong" and ought not to have been followed. I will consider that decision later in these reasons.
[33] On 17 March 2025, the applicant applied to this court for a declaration that the PPN was invalid, and an order setting aside the TPO. The second respondent opposed the making of the declaration and the other orders sought.
[34] The applicant invited me to ask the following question when considering his application for a declaration: "Whether it was a purpose of the legislation that an act done in breach of the provision should be invalid".
[35] To be more precise, and to avoid answering a hypothetical, in the context of this application, the question for me is whether it was intended by the legislature that a PPN which did not meet the pre-conditions for its issuance by failing to comply with section 101(1)(b) would be invalid as an application for a protection order.
[36] The applicant invited me to consider and construe "the relevant statutory framework" for PPNs. He argued that, on the Act's proper construction, relying on the text of the legislation and the explanatory notes, compliance with section 101(1)(b) was mandatory. Taking reasonable steps to contact the respondent before issuing the PPN was necessary "to afford natural justice" to the respondent.
[37] The applicant relied upon the decision of Dalton J (as her Honour then was) in McNab Constructions Australia P/L v Queensland Building Services Authority [2013] QSC 057, in arguing that the PPN was invalid - submitting that the PPN was analogous to the notice under consideration in that case. I will consider that decision later in these reasons.
[38] The applicant also compared section 110(4) with section 101 to argue that strict compliance with section 101 was required to ensure the validity of a PPN.
[39] The second respondent relied upon the two separate statutory functions served by the PPN - that is (a) as an interim protection measure and (b) as an application for a protection order. It argued that the requirements for its validity in each guise differed.
[40] The PPN in this case validly fulfilled its function as an application for a protection order. While it was true that the contravention of a PPN which did not substantially comply with section 101 might not provide a basis for offence proceedings, the Act simply provided that the PPN "was to be taken as" an application for a protection order. Nothing suggested that only a substantially or wholly part 2, division 4 compliant PPN was to be taken as an application for a protection order. Indeed, section 44, the section empowering a court to make a temporary protection order, contemplated a PPN attended by some deficiencies.
[41] The second respondent referred me to LSA v State of Queensland [2025] QCA 61, as a recent case dealing with PPNs. At [45], the Court stated that a police officer may issue a PPN only if the conditions in section 101 were met. The second respondent observed that the Court of Appeal was not considering the statutory framework of the Act. I will consider that decision later in these reasons.
[42] Considering the framework of the Act as a whole, the second respondent submitted that I would conclude that the section 101 requirements are not mandatory pre-conditions to the issue of a valid PPN - or perhaps more precisely, that a failure to comply with section 101(1)(b) did not render the PPN ineffective as an application for a protection order.
[43] Additionally, the second respondent submitted that I ought to exercise my discretion under section 12 of the Judicial Review Act 1991 to dismiss the application because adequate provision was made elsewhere for a review of the Magistrate's decision, namely the appeal provisions of the Act[5] - at least in so far as the applicant's desire to have the TPO set aside was concerned.
[44] Finally, the second respondent explained that, if the applicant were to succeed on this application, then the second respondent would make a fresh application for a domestic violence order. In those circumstances, a declaration as to the PPN or a writ of certiorari setting aside the TPO would have no practical effect other than to leave the aggrieved without protection until another domestic violence order were made. The applicant had not been charged with a breach of the PPN. If he wished to argue that a protection order ought not to be made, then he might do so upon the resumption of the hearing of an application for a protection order (if he were not to succeed here) or in the course of the foreshadowed fresh application (if he were to succeed here).
General consideration of the Act and the introduction of PPNs
[45] I have been asked, in effect, to decide whether the Magistrate's decision that the PPN was valid involved misconstruction of the Act leading to jurisdictional error.
[46] To make that decision, I must determine the objective intention of Parliament, disclosed by the language of the Act, read as a whole, having regard to its scope, subject matter, and purpose.
[47] There is absolutely no doubt that the Act seeks to give priority to the protection of actual or potential victims of domestic violence. That is apparent from its text and the operation of its provisions, which give primacy to its protective goals over the rights and liberties of a respondent. It is further made plain by relevant explanatory notes.
[48] The purpose or objects of the Act are expressly stated in its section 3 (my emphasis).
(a) to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and
(b) to prevent or reduce domestic violence and the exposure of children to domestic violence; and
(c) to ensure that people who commit domestic violence are held accountable for their actions.
(a) allowing a court to make a domestic violence order to provide protection against further domestic violence; and
(b) giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and
(c) imposing consequences for contravening a domestic violence order or police protection notice, in particular, liability for the commission of an offence."
[49] Section 4 contains the principles by which the Act is to be administered (my emphasis).
(1) This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
(2) Subject to subsection (1), this Act is also to be administered under the following principles -
(a) people who fear or experience domestic violence, including children, should be treated with respect and disruption to their lives should be minimised;
(b) to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;
(c) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
(d) if people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics;
(e) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection -
(i) the person who is most in need of protection in the relationship should be identified; and
(ii) only 1 domestic violence order protecting that person should be in force unless, in exceptional circumstances, there is clear evidence that each of the persons in the relationship is in need of protection from the other;
(f) a civil response under this Act should operate in conjunction with, not instead of, the criminal law."
[50] In addition to that which is expressed in the Act, its purpose may also be determined by reference to its text and structure, as well as by reference to extrinsic materials (in accordance with section 14B of the Acts Interpretation Act 1954 (Qld)).
[51] The applicant referred me to the explanatory notes for PPNs, especially to make his point about the significance of the pre-requisite to their issuance under section 101(1)(b).
[52] PPNs were included as a response to domestic violence by amendments to the original Act (the Domestic Violence (Family Protection) Act 1989 (the 1989 Act)) in 2012.
[53] As the explanatory notes to the Domestic and Family Violence Protection Bill 2011 (the 2011 Bill) explain, PPNs were created upon a review of the Act - the review being a key initiative of the then Government's strategy to reduce domestic and family violence ("For our sons and daughters: Queensland Government strategy to reduce domestic and family violence: 2009 - 2014").
[54] Before the introduction of PPNs, police were unable to respond in an immediate way to protect victims of domestic violence. Rather, under the original version of the Act, victims were left without protection (by way of a protection order) until, at the earliest, and only if the victim was "in imminent danger of personal injury or substantial loss in relation to property", an interim protection order was made (see section 17 of the 1989 Act). In the absence of an interim protection order, a victim was left without protection until: (a) an application for a protection order was made; (b) a summons was issued to, and (c) served upon, the prospective respondent; and (d) the matter was heard by a Magistrate (assuming a successful application leading to the making of a protection order or a temporary protection order), which could take several days if not weeks.
[55] When they were first introduced, PPNs were only available if the respondent was present when police attended at a domestic violence incident. This was found to be a shortcoming in their use and, as discussed below, that shortcoming was addressed by further amendments to the Act in 2016.
[56] The explanatory notes to the 2011 Bill relevantly explain that (my emphasis) -
(a) The 2011 bill focused on effective and timely responses to provide for the safety of victims of domestic violence and their children and to ensure that perpetrators were held accountable.
(b) The 2011 bill placed a greater emphasis on the policy objectives behind it, including by introducing a set of guiding principles. The principles are to provide guidance to police, lawyers, courts and members of the community when applying and interpreting the Act.
(c) With respect to PPNs in particular:
The Bill includes some changes to the powers that police officers have when they are responding to domestic violence incidents or dealing with people who have committed acts of domestic violence. This will increase the capacity of the police to provide quick and effective responses to victims of domestic violence. These changes include:
[57] As always, the explanatory notes consider whether the proposed legislation was consistent with fundamental legislative principles, which include the principles that legislation should make rights and liberties dependent on administrative power only if the power is sufficiently defined, subject to appropriate review, and consistent with the principles of natural justice: see sections 4(2)(a) and 4(3)(a) of the Legislative Standards Act 1992 (Qld). In that regard, the explanatory notes explain how the principles were addressed in the case of both the issuing and contravention of a PPN.
[58] With respect to its issuance, the explanatory notes explain (my emphasis):
"Clause 101 of the Bill allows a police officer to issue a protection notice against a person (the respondent) in certain circumstances. The police protection notice will include the conditions that the respondent be of good behaviour towards the aggrieved and not commit domestic violence and may, at the police officer's discretion, include a condition requiring the respondent to remain away from stated premises for up to 24 hours.
The police protection notice is a power exercised administratively by a police officer, which has the potential to affect the rights, liberties and obligations of people who are subject to the notice.
The reasons for allowing for police protection notices is to address a gap in the current range of responses available to police officers when they attend a domestic violence incident. A police officer's ability to ensure protection for an aggrieved in a timely way can be limited by the availability of a court to hear an application for a domestic violence order ...
Under the [then existing] Domestic and Family Violence Protection Act 1989, police officers can:
These responses are restricted to situations where there is a degree of urgency or a danger that the respondent will injure someone or damage their property. Otherwise, police may only make an application on behalf of the aggrieved and wait for the application to come before the court. There can be a delay of several days, or longer in remote areas, before the court hears the application and, during this time, the aggrieved is not protected by an order. In some situations, if the police cannot later locate the respondent to serve an application or a resulting order, the aggrieved may not be protected at all.
A police protection notice will provide an immediate response to many domestic violence incidents by enabling police to serve a notice while attending the incident ... As well as providing immediate protection for an aggrieved, a police protection notice overcomes problems with later locating and serving a respondent.
A number of safeguards have been incorporated into the Bill to strike the balance between protection of the victim and upholding the rights and liberties of individuals, including:
[59] With respect to the contravention of a PPN, the explanatory notes explain (my emphasis):
"A breach of a police protection notice ... constitutes an offence ... which carries a maximum penalty of 60 penalty units or 2 years imprisonment. The application of criminal sanctions, where the conditions of the notice are breached, has an impact on the rights, liberties and obligation of the person who has breached the notice.
The protective purpose of a police protection notice is compromised if there is not a serious consequence for breaching the conditions of the notice. That is, if there is no consequence for breaching an order (sic) or the consequence is limited to a fine, a respondent may not take the conditions on the order seriously. As discussed in the context of police protection notices, there are a number of safeguards to the issuing of the notice.
The quantum of the maximum penalty or breach of a civil notice is justified by the need to ensure an effective police response for victims of domestic violence. The safeguards that apply to the issue of the notice, and the requirement for a court hearing the prosecution of a breach of the notice to consider whether the notice was properly issued provide adequate protection for the rights and liberties of an offender who is charged with breaching a police protection notice."
[60] The explanatory notes to clause 178 are as follows:
"Clause 178 provides that it is an offence to contravene a police protection notice once a respondent has been served with a copy of the notice ... Subclause 178(3) provides that a court hearing proceedings for an offence under this provision must consider whether the police protection notice was issued in substantial compliance with Part 4, division 2. The words 'substantial compliance' will enable a court to distinguish between minor or technical deficiencies and those which are more substantial and bring into question the basis upon which the notice was issued."
[61] The Act was amended again in 2016. The Domestic and Family Violence Protection and Other Legislation Amendment Bill 2016 (Qld) (the 2016 Bill) included among its objectives the provision of earlier and more tailored protection to victims of domestic and family violence and requiring police to consider how immediate and effective protection may be provided to a victim, pending a court's consideration of an application for a domestic violence order (DVO).
[62] The explanatory notes refer to the recommendations of the Special Taskforce on Domestic and Family Violence Queensland (the Taskforce) contained in its report entitled "Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland". Recommendation 140 of the Taskforce was for an overarching review of the Act. It identified PPNs as a specific issue for consideration. The explanatory notes to the 2016 Bill explain that PPNs, as introduced in 2012, offered limited protection and the restrictions on their use, including that they could only be issued when the police officer was at the same location as the respondent, meant that police officers were discouraged from using them. The Taskforce recommended a reconsideration of PPNs to enhance victim safety and perpetrator accountability, whilst providing efficiencies for police and courts. Among other revisions to the PPN regime, the 2016 Bill removed the requirement that the police officer be in the same location as the respondent to issue a PPN and allowed police to issue a notice where, for example, the respondent had fled before police arrival. However, it required police to make reasonable efforts to speak to the respondent before issuing a PPN. The Bill also provided for the inclusion of more onerous conditions in a PPN for the purposes of providing immediate and effective protection for victims. The explanatory notes went on to state, "The Bill preserves current safeguards and court oversight of PPNs. Senior officers will continue to approve the issuing of PPNs and/or the conditions of them, and notices will continue to commence a court application for a DVO". The Bill also increased the penalties for contravention of a PPN.
[63] In considering whether the Bill was consistent with fundamental legislative principles insofar as its provisions concerning PPNs were concerned, the explanatory notes state (my emphasis):
"Clauses 19, 32 and 45 - expanding the role of and protection in police protection notices
Currently, police can impose more onerous conditions to restrict the behaviour of respondent - such as an ouster condition that lasts until a court hearing - when they detain them and subsequently release them on conditions under Part 4, Division 3 of the Act. The threshold for a respondent's detention is that a person is in danger of injury or property is in danger of being damaged.
Clause 19 of the Bill expands the circumstances in which police can impose such conditions to situations where the condition is necessary or desirable to protect the aggrieved or another person as part of a PPN. Clauses 32 and 45 provide that while personal service is required for a PPN, a PPN may be enforceable if a police officer has told a respondent about the existence of the PPN and the conditions contained in the PPN. This is a potential departure from the principle that sufficient regard be given to the rights and liberties of individuals under section 4(2) of the Legislative Standards Act 1992.
This departure is necessary to ensure that people who fear or experience domestic and family violence are effectively protected and perpetrators are held accountable in the period between police attending an incident and the court hearing an application for a PO.
The enforcement of PPNs is consistent with the enforcement of DVOs, in that personal service will be required, but if a respondent breaches a condition they have been advised has been included in a PPN, it will constitute an offence. This will ensure that victims are provided with the earliest possible protection and perpetrators are held accountable for their actions.
Limitations and safeguards will apply to the issuing of more onerous PPNs. The limitations and safeguards are:
These safeguards and limitations balance the need to provide immediate, effective protection to victims when domestic and family violence occurs, with protecting the rights of the respondent."
[64] LBU v QPS & Anor [2020] QDC 279 was an appeal from a Magistrate's decision to make a TPO against the appellant on the ground that the PPN was deficient for non-compliance with section 101 and therefore invalid. In dismissing the appeal, Rinaudo AM DCJ found that the PPN was valid and properly treated by the Magistrate as an application for a domestic violence order: [38]. His Honour said at [35] that compliance with section 101 was not mandatory, and that non-compliance would not render the PPN invalid. His Honour continued (my emphasis), "In any event, it is clearly stated that in so far as the presiding Magistrate is concerned, the PPN is treated as the application. Therefore, what is relevant, is a consideration by the Magistrate of the circumstances surrounding the alleged events, and whether the requirements of section 45 of the Act have been met such that a temporary protection order should be made for the protection of the aggrieved and other persons mentioned in the PPN".
[65] The applicant invited me to conclude that this decision was "plainly wrong". I am not of that view. I respectfully agree with Rinaudo AM DCJ that a PPN as an application for a protection order is not invalid for non-compliance with section 101 of the Act.
[66] The Court of Appeal in LSA v State of Queensland [2025] QCA 61 said little of relevance to this application. The Court simply said at [45] that a police officer may issue a PPN if the conditions in section 101 are met; and must issue a PPN if the conditions in section 101A are met. But LSA, who asserted non-compliance and therefore invalidity, did not identify any requirement of any provision which was not met. Further, the assertion of non-compliance was made in the context of a false imprisonment claim by the applicant. The Court found that LSA had not been imprisoned at all - he had voluntarily accompanied the police and that finding did not depend upon whether the PPN was valid or not. The case was not of assistance to me.
[67] McNab Constructions Australia P/L v Queensland Building Services Authority [2013] QSC 057 concerned notifications of directions to rectify building works, given to the applicant by the respondent under section 72 of the Queensland Building Services Authority Act 1991 (Qld) (the QBSA Act). The applicant successful contended that the notices were not valid because they failed to comply with a mandatory requirement that the period for rectification stated in each of the direction had to be at least 28 days. In holding that the notices did not comply with the section and were therefore invalid, her Honour observed that the failure to comply with the direction was an offence which could have serious consequences for a builder's licence. Her Honour said at [11]:
"In my view the requirement as to the recipient builder having at least 28 days to rectify in accordance with a direction issued pursuant to s 72 of the QBSA Act was essential to the validity of the notices issued by the respondent. The respondent did not have a power to issue a notice requiring rectification in a period shorter than 28 days except as specified at s 72(3)(a) or (b). It follows that the directions to rectify issued by the respondent were invalid or void."
[68] The notice the subject of that decision was akin to the PPN in its guise as an interim protection measure. I did not find the decision of assistance in this application, which concerned the invalidity or otherwise of the PPN as taken to be an application for a protection order.
[69] It would be completely contrary to both the text and purpose of the legislation, and lead to unsupportable inconsistency, if a PPN failed in its operation as an application for a protection order because of its non-compliance with section 101(1)(b).
[70] PPNs were introduced to provide a level of short-term immediate protection to a victim of domestic violence which had not previously been available to them.
[71] They were introduced as an addition to the only previously available responses which depended on the outcome of an application decided by a Magistrate. Before the introduction of PPNs, only a Magistrate could provide protection to a victim by way of the making of a domestic violence order. Under the PPN regime, a police officer is empowered to provide similar protection in the short term - on the strength of their reasonable belief, rather than satisfaction, that inter alia the respondent has committed domestic violence and that a PPN is necessary or desirable to protect the aggrieved from the respondent's domestic violence.
[72] The Act does not burden a police officer who has issued a PPN with having to separately apply for a protection order. Efficiency is achieved by section 112 of the Act which gives the PPN its second function as an application.
[74] It is plain that the preconditions in section 101 are designed to ensure that a PPN - the breach of which may attract serious sanctions - is issued only in appropriate circumstances, having regard to the immediacy of its issuance and its short-term operation. Those circumstances include, inter alia, that the police officer reasonably believes the respondent has committed domestic violence and that a PPN is necessary or desirable to protect the aggrieved from domestic violence.
[75] Of course, section 101 has other requirements, but the provision echoes the considerations of a Magistrate in issuing a protection order: see section 37(1) of the Act.
[76] It makes sense, and demonstrates due regard for the rights and liberties of a respondent, for the preconditions to include a requirement that the police are required to make a reasonable attempt to locate and talk to the respondent to afford the respondent natural justice in relation to the issuing of a PPN, in so far as it operates as a protective measure, just as a Court hearing an application for a protection order anticipates that a respondent will have been served with the application and will appear and be heard as to whether a protection order ought to be made.
[77] But if the respondent does not appear or if the applicant asks the Court to proceed under section 36, then an order offering protection may be made without hearing from the respondent. Indeed, it is important to note that a Court may make a TPO without having to consider whether a TPO is necessary or desirable to protect the aggrieved from domestic violence. That is consistent with the primacy given to the goal of protecting victims or potential victims of domestic violence by the legislation. Before a matter may be fully heard and determined, where an act of domestic violence has been committed, the default position is to protect in the short/temporary term.
[78] Obviously, the way in which a PPN operates protectively is by way of the consequences prescribed for its contravention.
[79] Contraventions are pursued in accordance with the path set out in section 178 of the Act. It will be recalled that under section 178(3), the court presiding over a hearing in which a contravention of the PPN is alleged is required to consider whether the PPN was issued in substantial compliance with part 4, division 2.
[80] The Act does not render a non-compliant PPN invalid for the purposes of a prosecution for its contravention. Rather, it allows a Magistrate to ignore technical deficiencies in the issuing of the PPN, but not those which call into question the basis upon which the PPN was issued. In this context, the Act clearly prioritises protection of the aggrieved over the rights and liberties of the respondent. But those rights and liberties are not ignored. If a court considers that the PPN ought not have been issued in the first place, including because the pre-conditions of section 101 were not met, then a prosecution for its contravention will be halted.
[81] However, it is not the case that a PPN which is not substantially compliant with section 101 cannot operate as an effective protective measure. Whether it will or not so operate depends on the Magistrate's assessment of the significance of the non-compliance. This approach is consistent with the Act's prioritisation of protection from domestic and family violence.
[82] Further, in my view, it is not logical to read anything into section 178(3) which bears upon the question for me about the validity of a PPN as an application for a protection order.
[83] The priority given to protection is also apparent from the provision permitting the valid extension of a PPN as a protective measure even without appearances by the parties to the application for the protection order: see section 113(5) of the Act. Further, under section 113(8), a failure to comply with the notification requirements of section 113(7) does not render invalid any extension of a PPN or otherwise affect extension of the notice.
The PPN as an application for a protection order
[84] Division 11 of Part 3 of the Act sets out the start and end dates for domestic violence orders. Speaking generally, most protection orders are in place for five years - thereby impacting significantly on the rights and liberties of a respondent.
[85] Operating as an application for a protection order, the PPN causes a Magistrate - not a police officer - to decide, ultimately, whether a protection order is necessary or desirable to protect the aggrieved from domestic violence.
[86] As an application to a Magistrate, the PPN does not restrict the rights or liberties of a respondent, beyond requiring inviting them to respond to an application for a protection order. In my view, it would be absurd in the extreme if more was required for the validity of a PPN taken as an application for a protection order than that which is required for the validity of an application for a protection order by a police officer made under section 100(2)(a) and 100(3)(a). All that is relevantly required for a section 100(3)(a) application's validity is that it be in the approved form; state the grounds upon which is it made; and state the nature of the order sought (see section 32). Other provisions of the Act take care of the need to ensure a respondent is afforded natural justice in the face of an application, including those which require personal service of the application; and those which require the application to inform the respondent that a DVO may be made in their absence or that a warrant may issue for them to be taken into custody if a court believes it is necessary to hear from a respondent who does not appear.
[87] Also, as noted above, under section 36, an applicant may ask the clerk of the court for a hearing before the respondent is served with an application, with a view to the court making a TPO under section 44 of the Act. It would be an absurd outcome if it were the case that a police officer could make an application for a TPO (which operates protectively for much longer than a PPN) before serving the respondent with the application for a protection order; but a PPN could not operate as a valid application in the absence of compliance with section 101(1)(b).
[88] Strict compliance is not required even where a PPN operates as a protective measure, rendering a respondent liable for punishment upon its breach. There is thus no logical reason why strict compliance is required when the impact of a PPN upon the rights and liberties of a respondent is as limited as it is in the context of a PPN being taken as an application for a protection order.
[89] In other words, in my view, it would be completely contrary to: the purpose of the Act; the principles for administering the Act, in particular the principle in section 4(1); and the Act's clear prioritisation of the protection of victims or potential victims of domestic violence to hold that strict compliance with section 101(1)(b) is required before a PPN may act validly as an application for a protection order. As I have said, in its guise as an application, natural justice considerations are dealt with by other provisions.
[90] Further, requiring strict compliance with section 101(1)(b) before a section 100(3)(c) PPN may operate as a valid application for a protection order would be inconsistent with the provisions which govern the validity of a section 100(3)(a) application for a protection order. Such an application may be made on the strength of a police officer's reasonable belief, formed after the investigation of a complaint of domestic violence, that domestic violence has been committed and that it is necessary or desirable to take action to protect a person from further domestic violence. Whilst the police officer may speak to the respondent during the course of the investigation mentioned in section 100(1), they are not obliged to. No purpose would be served by the inconsistency created if the applicant's arguments about the PPN's validity as an application were correct.
[91] That conclusion is fortified by the text of the legislation which states simply that a PPN is "taken to be an application for a protection order made by a police officer".
[92] The cases to which I was referred do not alter my view:
(a) My conclusion is consistent with that of Rinaudo DCJ.
(b) The Court of Appeal did not consider this issue; and
(c) Justice Dalton's decision concerns notices which align with a PPN to the extent to which it operates as something which can be contravened leading to penalties but not in its guise as an application only - which does not impact in the same way upon a respondent's rights or liberties.
[93] As to the applicant's argument about section 110(4), it is my view that rather than support an argument that strict compliance with section 101 is required for a PPN's validity as an application for a protection order, it simply reflects the legislation's desire to afford paramountcy to the need to protect potential or actual victims of domestic violence. Section 110(4) makes it clear that the Act will not tolerate the invalidation of a protective measure simply on the grounds of non-compliance with the explanation provision. The significance of non-compliance with other relevant provisions is a matter for a Magistrate under section 178(3).
[94] In other words, in the case of a PPN as a protective measure: having regard to the detail in section 110, the Act anticipates that an oral explanation for the PPN might fall short, or indeed, may not be given at all. That is not enough to invalidate the PPN as a protective measure. Section 110 is premised on the fact that the police officer has served a PPN upon the respondent or told them about it. Their attention has thus been drawn to it and the Act makes it clear that that is sufficient. But in accordance with section 178(3), the PPN will not be permitted to operate protectively, in the sense that a respondent may be punished for contravening it if there was no proper basis for its issuance. It will be permitted to operate protectively if non-compliance is technical or trivial or does not undermine the basis for the issuance of the PPN.
[95] If non-compliance does not operate to automatically invalidate the PPN as a protective measure, which impacts upon the rights and liberties of a respondent, it makes no logical sense to contend that it ought to automatically invalidate a PPN as an application for a protection order, which, as I have explained, impacts in a very limited way on the rights and liberties of the respondent.
[96] To conclude: I refuse the applicant's application for a declaration and other orders. The PPN is not invalid as an application for a protection order because of SC's failure to comply with section 101(1)(b).
[97] Further, as the second respondent indicated, if the applicant were successful, to ensure the aggrieved was properly protected, police would make an application for protection for her. Thus, any victory before me would be short lived and of no utility.
"[33] It is a well-established principle that the conduct of police investigations, particularly decisions by police whether or not to prosecute, are not susceptible to a statutory order of review and, thus, they are not susceptible to a request for a statement of reasons. As Gaudron and Gummow JJ said in Maxwell v The Queen:
"The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what."
[32] I need not decide whether the investigations by the police and the actions they took under the DV Act were of an exclusively criminal or civil nature. They fall within either clause 1 or clause 2 of Schedule 2 of the JR Act. Some could be categorised as being decisions relating to the administration of criminal justice and some could be categorised as decisions in relation to the institution or conduct of proceedings in civil courts."
[2] In my view, there was an argument to be made that there had been compliance with section 101(1)(b) in the circumstances - but that is not to say that it would have been successful. In any event, as noted, it was conceded that the PPN was non-compliant.
[3] In my view, the PPN document itself was non-compliant with section 105(1)(i) of the Act.
[4] The time at which the order was printed.
Section 12 of the Judicial Review Act 1991 states:
"12 When application for statutory order of review may be dismissed
Despite section 10, but without limiting section 48, the court may dismiss an application under section 20 to 22 or 43 that was made to the court in relation to a reviewable matter because -
(a) the applicant has sought a review of the matter by the court or another court, otherwise than under this Act; or
(b) adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the court or another court."
MAB
Magistrate Hackett & Anor [2025] QSC 299
(i) the right of the respondent or aggrieved to obtain legal advice before attending court; and
(j) any other matter prescribed under a regulation.