On 1 July 2024, the final stage of legislation targeting domestic abuse and coercive control comes into force with the introduction of new offence provisions in the Crimes Act 1900 (NSW).

The amending legislation was passed in November 2022 and purposely staged to assess the effects of each stage before the next came into force and to allow appropriate training and education for police, the legal sector and other stakeholders.

A New Definition for ‘Domestic Abuse’

As part of these changes, a new legal definition of ‘domestic abuse’ was inserted into the Crimes (Domestic and Personal Violence) Act 2007 (NSW) on 1 February 2024. This definition classifies ‘domestic abuse’ as any behaviour in a domestic relationship that is:

-              Violent;

-              Threatening;

-              Coercive or controlling; or

-              Makes a person fear for their safety or the safety of others.

The definition is intended to recognise that abuse is more than physical violence and can include emotional or psychological harm, as well as financial control or abuse, and encompasses either a single act or many acts over a period of time. It is also intended to recognise that children experience domestic abuse when they witness certain things when they are exposed to it.

This change in definition is relevant to the upcoming offence provisions because it necessarily broadens the scope of behaviour that can fall within the ambit of them.

New Offence Provisions

The offence is formally called ‘abusive behaviour towards an intimate partner’ and is being inserted into s 54D of the Crimes Act 1900 (NSW). Proof of the offence requires the prosecution to make out each of the following elements:

1.         The accused person is an adult;

2.         The accused person has engaged in a course of conduct against another person that consists of abusive behaviour;

3.         The accused and the other person are or were intimate partners;

4.         The accused intends for the course of conduct to coerce or control the other person; and

5.         A reasonable person would consider under the course of conduct likely in all the circumstances to cause any or all of the following (whether or not the fear is actually caused):

(a)      Fear that violence will be used;

(b)     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.

What is important to note in relation to the new offence is that it is a course of conduct offence. This was a deliberate choice as the offence provision will not operate in relation to conduct that pre-dates the introduction of the offence provision, so there can’t be a raft of new charges against a person from 1 July based on historic conduct (or a defence may be available if there is). All conduct relied upon in making out a charge must be conduct that is alleged to take place after 1 July 2024 but can include conduct that takes place outside of NSW, as well as inside NSW, or a mix of both.

A careful reading of the provision and the new statutory definition has been drafted carefully to be broad (and encompass a broad range of behaviours), however, care has been taken to avoid unforeseen consequences and therefore a statutory defence of reasonableness is also being introduced with the provision, to be inserted at s 54E of the Crimes Act 1900.

This aims to give an accused person the opportunity to address the reasonableness of their behaviour in all of the circumstances.

For example, what may fall within the definition of ‘financial abuse’ by one partner controlling all of the finances in a relationship, may be because one partner routinely suffers from manic episodes and spends all of the finances, or is a problem gambler. This may be seen to be reasonable in the circumstances and therefore a defence to the new provision.

There will also be review and other operational provisions inserted along with the offence.

Where To From Here?

With the imminent introduction of the new offence provisions, we will soon see these offences begin to filter through the criminal justice system.

The offence being a course of conduct offence, will raise issues in relation to various allegations of conduct at points in time and whether it is the appropriate charge. Defence lawyers will be required to make careful investigation as to prior charges, to ensure that prosecutors do not rely on the same conduct over separate occasions.

If you find yourself facing domestic violence charges, or particularly if you find yourself facing charges in relation to coercive control, ensure you get the specialist legal advice that is required to maximise your chances of the best possible outcome for you. Call our team at Mitchell & Co Lawyers on (02) 8507 2091.