Harsher Domestic Violence and AVO Laws Enacted in New South Wales

Domestic violence offences continue to be prevalent across Australia, despite a range of initiatives aimed at effecting cultural change and supporting those affected, as well as recently passed laws which make it more difficult for those accused of domestic or family violence to mount successful bail applications, and stricter conditions for those who are able to obtain bail.

The toughened stance against domestic violence comes of the back of several reported instances whereby those who have been released on bail after being accused of domestic violence have gone on to commit serious criminal offences.

One of these cases is that of Daniel Billings, who has been charged with murdering his former partner, Molly Ticehurst in Forbes, New South Wales on 22 April 2024 after being granted conditional bail over allegations of domestic violence.

New laws passed in parliament

The community outcry about the tragic death contributed to the passing of the Crimes (Domestic ad Personal Violence) and Other Legislation Amendment Bill 2024 (‘the Amending Act’) by both Houses of the New South Wales Parliament on 24 September 2024.

Some of the key changes being brought in by the bill are the amendment of the Crimes (Domestic and Personal Violence) Act 2007 (‘the AVO Act) to introduce:

1. A new offence of knowingly contravening an apprehended domestic violence order

Section 14(1) of the AVO Act currently makes it an offence punishable by a maximum penalty of two years in prison to contravene an apprehended violence order.

The Amending Act inserts a new section 14(1A) into the AVO Act which prescribes a maximum penalty of three years in prison where a person knowingly contravenes a prohibition or restriction specified in an apprehended domestic violence order with the intention of causing the protected person physical or mental harm, or fear for their safety or that of another person.

2. A new offence of persistently contravening an apprehended domestic violence order

The Amending Act inserts a new section 14(1C) into the AVO Act which prescribes a maximum penalty of 5 years in prison where a person knowingly contravenes a prohibition or restriction specified in an apprehended domestic violence order in circumstances where on at least 2 occasions within the previous 28 days, the person:

• Knowingly contravened the order against the same protected person, or in relation to the same ADVO whether or not relating to the same protected person, or arising from an application for the same ADVO, and
• A reasonable person would consider that the conduct would likely cause the protected person to physical or mental harm, or fear for their safety or that of another person, whether or not harm or fear was in fact caused.

3. Serious Domestic Abuse Prevention Orders

The Amending Act inserts a new Part 10A into the AVO Act which introduces a mechanism for the issuance of a new type of order known as a Serious Domestic Abuse Prevention Order, or SDAPO.

The new section 87C in that part provides that such an order may contain prohibitions, restrictions, requirements and any other provisions that the court considers appropriate to prevent the subject of the order from engaging in domestic abuse of family members, former, current or potential intimate partners, and/or person/s in an intimate relationship with the subject person’s intimate partner.

The new section 87B empowers the court to make a SDAPO if:

• A person is at least 18 years of age,
• The court is satisfied that during the previous 10 years when the person was at least 16 years of age, the person was convicted of two or more domestic violence offences with maximum penalties of at least seven years in prison, or of serious domestic abuse activity, and
• The court is satisfied there are reasonable grounds to believe the order would protect the person’s family member, former, current or potential intimate partner, or person in a domestic relationship with the person’s intimate partner (which is defined to include a previous partner).

The Part makes clear that hearsay evidence may be admissible when determining the application and ‘serious domestic violence activity’ may be considered to have occurred whether or not the person was ever charged with it, or whether he or she was charged and subsequently acquitted, or whether any conviction was later quashed on appeal.

The new section 87D states that the duration of an SDAPO cannot exceed five years, although an application can be made to renew the order upon expiry.

The new section 87E prescribes a maximum penalty of 5 years in prison for knowingly contravening a SDAPO.

SDAPO’s are similar to recently introduced Serious Crime Prevention Orders in so far as they impose restrictions on those who have ‘served their time’ and, while the government says they will only be applied to ‘very high-risk offenders’, these types of orders have been criticised as an unfair restriction of personal freedoms, namely the right to get on with ones life without interference from the state after having faced the consequences of ones actions.

There are also concerns these types of orders unjustifiably stigmatise offenders and make it harder for them to assimilate into the community.

There are further concerns about the fact the order can be based on hearsay evidence and can be made even if a person have never even been charged with, let alone convicted of, a criminal offence.

There are further concerns

4. An extended definition of ‘stalking’

Section 13 of the AVO Act contains the offence of stalking or intimidation with intent to cause physical or mental harm, which carries a maximum penalty of five years in prison.

Section 8 of the AVO Act defines ‘stalking’ as including:

(a) The following of a person about,

(b) The watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity,

(c) Contacting or otherwise approaching a person using the internet or any other technologically assisted means.

The Amending Act will insert section 8(1)(b1) into the AVO Act making it clear the definition of stalking extends to the monitoring or tracking of a person’s activities, communications or movements, whether by using technology or in another way, and whether or not the monitoring or tracking involves contacting or otherwise approaching the person.

5. Electronic service of provisional apprehended violence orders

A provisional apprehended violence order is also known as a ‘telephone AVO’.

It is normally the first application in AVO proceedings and lasts until the first court date, after which an interim or final AVO may be made.

Currently, a provisional AVO must be personally served on a defendant.

But a reformulated section 31 of the AVO Act will allow police officers to electronically serve a provisional AVO on a defendant if:

• The defendant or protected person consents, and
• The police officer has personally explained to the defendant or protected person the effect of the order, the consequences that may follow contravention and the rights of the defendant and protected person.

The word ‘or’ is important, as it means the defendant need never be consulted regarding electronic service.

Prevalence of Domestic Violence

The 2021-2022 Personal Safety Survey found that 1 in 6 women and 1 in 18 men had reported experiencing physical or sexual violence by a current partner or ex-partner after the age of 15. 1 in 5 women and 1 in 16 men had also experienced sexual violence after the same age.

The same survey found that 20% of the Australian population reported being exposed to domestic violence since the age of 15, with over 11% saying they had experienced violence from a current or previous partner.

Research by the New South Wales Bureau of Crime Statistics and Research (BOCSAR) paints an even starker picture – finding that 1 in 4 women are impacted by domestic violence at some point in their lifetimes.

Of particular concern is BOCSAR’s finding that the number and rate of domestic violence-related assaults across the state has increased over the last three years, coming to 37,332 between July 2023 and June 2024 — up by 7,000 reported cases from June 2021 to June 2022.

The Bureau further found that domestic violence-related murder is also on the rise in New South Wales, with 15 adult female deaths, 13 adult male deaths and three child deaths reported from June 2023 to June 2024.