Coercive control laws NSW: Domestic abuse is a criminal offence

On Monday, 1 July 2024, the NSW Crimes Act 1900 was amended to create a new office relating to abusive behaviour towards current or former intimate partners in addition to an amendment to the Crimes (Domestic and Personal Violence) Act 2007 to provide for a new definition of domestic abuse.

By Jessica Koot – Principal Lawyer and Practice Leader, Watts McCray Illawarra.

After a lengthy progress, commencing Monday, 1 July 2024, abusive behaviour towards current or former intimate partners, including coercive control, became a criminal offence in NSW.

Keep reading to learn more about the changes to abusive behaviour and coercive control laws in NSW.

What is coercive control?

Historically, domestic and family violence was recognised as physical violence and/or sexual violence. We know have much greater awareness about the devastating and often long-term impacts that other forms of domestic, family, and sexual violence can have on victim survivors.

Coercive control is a form of domestic, family, and sexual abuse that involves a pattern of abuse used to control and dominate another person. Coercive and controlling behaviours can be varied and include physical and non-physical abuse, including emotional abuse, manipulation, intimidation, threats, harassment, financial abuse, sexual coercion, isolating the victim survivor from family and friends, monitoring, stalking, dominating and/or technology-facilitated abuse.
There is a strong link between intimate partner homicide and coercive and controlling behaviour. The NSW Domestic Violence Death Review Team Report 2019 – 2021 found that in 97% of intimate partner domestic violence homicides cases, the victim had experienced coercive and controlling behaviours before being murdered.

What are the elements of the new criminal offence under the amendments to the NSW law?

The six elements to the offence are:

1. The perpetrator must be an adult over the age of 18 years.
2. The perpetrator and victim survivor must either be currently in an intimate partner relationship or have been in an intimate partner relationship in the past.
3. The perpetrator must have undergone a course of conduct. Course of conduct means engaging in behaviour repeatedly or continuously.
4. The course of conduct of the perpetrator must have consisted of abusive behaviour. Abusive behaviour, must have consisted of or involved:
   1. Violence or threats against, or intimidation of, a person, or
   2. Coercion or control of a person against whom the behaviour is directed.
5. The perpetrator must have intended for the course of conduct to coerce or control the other person.
6. It must be such that a reasonable person would consider the course of conduct would be likely to cause fear that violence will be used against the other person or another person, or a serious adverse impact on the capacity of the other person to engage in some or all of the person’s ordinary day to day activities (whether or not the fear or impact is in fact caused).

The offence needs to be proven beyond reasonable doubt.
It is a defence under Section 54E if the course of conduct was reasonable in all the circumstances.

What are the possible penalties in NSW?

Where matters are dealt with in the Local Court, charges could see imprisonment of up to two years. For matters elected to be dealt with in the District Court, sentences can be up to seven years imprisonment.

Under the Bail Act, this offence is a “show cause” offence, meaning that the onus will be on the person charged when applying for bail to satisfy the Court that bail should be granted.

Concerns regarding the limited scope and implementation of the amended legislation

Concerns about the new criminal charge in NSW include:

1. To satisfy the elements of the offence, the victim survivor and perpetrator must either currently be intimate partners or have previously been intimate partners. Other types of relationships are not covered.
2. The exposure bill had the threshold as recklessness however, under the changes to the legislation, the perpetrator must have intended that their course of conduct would coerce or control the victim survivor. The need to prove intention is an additional burden for victim survivors and prosecutors. While the intention of the government is to avoid misidentification, it may have the opposite impact by making identification more difficult.
3. Courts and Police need to be properly supported and staffed to undertake the significant workload likely to come directly from these amendments and criminalisation of coercive and controlling behaviours. It is no secret that our Courts and Police are already overworked and under-resourced.
4. Victim survivors will need to collate evidence of patterns of behaviour. This can be very difficult when in a relationship involving domestic, family, and sexual violence, as the perpetrator may find the victim survivors records and notes.
5. Charges cannot be laid for behaviours prior to 1 July 2024. However, prior behaviours may be relied upon by the prosecution as tendency evidence.

We’re here to support you

If you are experiencing domestic, family, and sexual violence, and require assistance escaping an abusive marriage or relationship, and navigating a separation, we are here to support you.

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