On 17 November 2022, the NSW Government passed the Crimes Legislation Amendment (Coercive Control) Bill 2022 (NSW).
The new offence is not yet enforceable. The provision will come into force as early as 1 February 2024.
The amendment creates a new offence under Section 54D the Crimes Act 1900 (NSW) of “abusive behaviour towards current or former intimate partners”, which is often referred to as “coercive control”.
In short, there are 4 main components of the offence:
- There must be a course of conduct;
- Consisting of abusive behaviour;
- Intended to coerce or control; and
- Causing fear that violence will be used, or a serious adverse impact on capacity to engage in ordinary day-to-day activities.
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Under Section 54G, ‘course of conduct’ involves engaging in behaviour that is repeated or continuous. The behaviour does not need to be an unbroken series of incidents, or in immediate succession. It can be committed in NSW and in another jurisdiction.
Section 54F will define ‘abusive behaviour’ as follows:
a) Violence or threats against, or intimidation of a person, or
b) Coercion or control of the person against whom the behaviour is directed.
Section 54F provides a non-exhaustive list of behaviour that may constitute ‘abusive behaviour’, which includes behaviour that:
- Causes harm to a child if a person fails to comply with demands made of the person.
- Causes harm to the person against whom the behaviour is directed, or another adult, if the person fails to comply with demands made of the person.
- Is economically or financially abusive.
- Shames, degrades or humiliates.
- Directly or indirectly harasses a person, or monitors or tracks a person’s activities, communications or movements, whether by physically following the person, using technology or in another way.
- Causes damage to or destruction of property.
- Prevents the person from making or keeping connections with the person’s family, friends or culture, participating in cultural or spiritual ceremonies or practice, expressing the person’s cultural identity, or otherwise isolates the person.
- Causes injury or death to an animal, or otherwise makes use of an animal to threaten a person.
- Deprives a person of liberty, restricts a person’s liberty or otherwise unreasonably controls or regulates a person’s day-to-day activities.
Examples of abusive behaviour might include the following:
- One partner preventing the other from accessing a joint bank account and therefore cutting off financial support to meet the person’s living expenses.
- Denying a person access to the shared home.
- Cutting off access to food, clothing or medical supplies.
- Using an app to track a partner’s movements.
Although the offence has an objective element to it, the offence requires proof beyond a reasonable doubt of actual subjective intent to coerce or control.
The maximum penalty reflects the seriousness of the offence, as well as the subjective intention element, being a term of imprisonment of 7 years.
Section 54D is a Table 1 offence, which means it will usually be prosecuted in the Local Court. Although, for serious cases, because it is an indictable offence, it can be prosecuted on indictment in the District Court.
Section 54E which allows an accused to raise the defence that their actions were reasonable in all the circumstances.
Conduct is considered reasonable if:
1) Evidence adduced is capable of raising an issue as to whether the course of conduct is reasonable in all the circumstances, and
2) The prosecution does not prove beyond reasonable doubt that the course of conduct is not reasonable in all the circumstances.
As with other offences, there may be a significant dispute about what actually happened. Additionally, it is expected that proof of intention to coerce or control will be in issue.