Serious Domestic Abuse Prevention Orders in New South Wales

On 24 September 2024, the Crimes (Domestic ad Personal Violence) and Other Legislation Amendment Bill 2024 was passed by both Houses of the New South Wales Parliament, amending the Crimes (Domestic and Personal Violence) Act 2007 (‘the Act’) to, among other things, introduce Serious Domestic Abuse Prevention Orders.

The New South Wales government says “[t]he scheme allows the court to impose any conditions it considers appropriate to prevent the perpetrator engaging in domestic abuse.”

It justifies the scheme on the basis that it “provides law enforcement with a tool to monitor and supervise very high-risk offenders, with the aim to keep relatives and former, current or potential future intimate partners safe from violence.”

However, there are concerns the orders represent an unjustified restriction on the personal liberties of those who have ‘served their time’, and unfairly stigmatise and make it harder for those subjected to the orders to integrate into society and move ahead with their lives.

These concerns are amplified by the fact that, contrary to the claims of the government, the laws are drafted in a way that means they can be brought against those who have never been convicted of any offence, or even had an final apprehended violence order made against them, and applications can be made at the whim of police or the DPP on potentially tenuous information, including information that was proven to be false.

In any event, here’s an outline of the government’s new scheme.

Serious Domestic Abuse Prevention Orders

The provisions that relate to Serious Domestic Abuse Prevention Orders (or ‘SDAPOs’) are contained in a new Part 10A of the Act, which comprises sections 87A to 87K.

Power to make a SDAPO

Section 87B(1) of the Act empowers an appropriate court on the application of an eligible applicant to make an SDAPO against a person if:

1. The person is at least 18 years old,
2. The court is satisfied that, during the previous 10 years, the person, when at least 16 years of age:

1. has been convicted of 2 or more domestic violence offences with a maximum penalty of 7 years imprisonment or more, or 

(ii) has been involved in serious domestic abuse activity, and 

(c) the court is satisfied there are reasonable grounds to believe that the making of the order would protect a family member of the person, a former, current or potential intimate partner of the person or a person in a domestic relationship with an intimate partner of the person by preventing the person engaging in domestic abuse.

Definitions 

The definitions that apply to SDPAOs are contained in the new section 87A of the Act, which provides as follows.

An ‘an appropriate court’ is:

• The Local Court if the ground for making the order is that a person has been convicted of two or more domestic violence offences that carry a maximum penalty of seven years or more, or
• The Supreme Court if the ground for making the order is that a person has been involved in serious domestic abuse activity.

An ‘eligible applicant’ is the Commissioner of Police or Director of Public Prosecutions.

A ‘family member’ is a person who has been a relative of the person, and for a person who is an Aboriginal or Torres Strait Islander includes a person who is or has been part of the extended family or kin according to the indigenous kinship system of the person’s culture.

An ‘intimate partner’ is a person who is or has been married to, or a de facto partner of, the person, or who has or had an intimate personal relationship with the person, whether or not the relationship was sexual.

‘Serious domestic abuse activity’ is anything done by a person that is or was at the time a serious domestic violence offence for which the person has been charged regardless of whether the charge was later withdrawn or dismissed in court, or quashed on appeal.

And a ‘serious domestic abuse offence’ is one that falls under Part 3 of the Crimes Act 1900 that carries a maximum penalty of at least 14 years in prison and was against a family member or intimate partner, or was a similar offence against the Commonwealth or another state or territory in Australia.

These offences are classed as ‘offences against the person’ and span from sections 18 to 93AC of the Crimes Act 1900 and include many acts causing death, intents to murder, assault offences, sexual offences and kidnapping (detaining for advantage), to name a few.

What the application must include

The new section 87B(2) of the Act stipulates that an application for a SDAPO must include the details of any apprehended violence order (AVO) against the person as well as the details of any orders made under the Family Law Act 1975 of the applicant is aware.

Applications alleging serious domestic abuse activity

Section 87B(3) provides that applications for SDAPOs that involve claims of serious domestic abuse activity for which a person has not been convicted, or which were quashed on appeal, must include details of the alleged offence as well as the court in which and date on which the charge was withdrawn, dismissed or quashed.

Requirement for service

Sections 87B(4) and (8) require that a person must be personally served with the application for a SDAPO at least 14 days before the date of the hearing of the application, unless an appropriate court orders otherwise.

Right to attend court and make submissions

Section 87B(5) makes clear that a person who is served with an application for a SDAPO has a right to attend court and make submissions regarding the application.

Court must consider views of family members and partners

Section 87B(6) requires a court to have regard to the views of family members, former and current intimate partners, and any person who is in an intimate relationship with a person against whom the application for a SDAPO is made when determining whether to grant the application.

Hearsay evidence is admissible

Section 87B(7) pushes aside the general prohibitions contained in the Evidence Act 1995 against the admissibility of hearsay evidence, which includes information that was not directly observed, making clear that a court can consider such ‘evidence’ it believes it was from a reliable source, is relevant and of probative value (ie can influence a fact at issue in the application) and the person against whom the application is being made is notified of, and served with, a copy of material that includes the information.

What a SDAPO can contain

Section 87C(1) gives the court broad discretion to prescribe prohibitions, restrictions, requirements and other provisions which the court considers appropriate to prevent the person against whom the order is made to engage in domestic abuse in relation to family members, former, current or potential future intimate partners, and/or persons who are in a domestic relationship with an intimate partner.

This can include conditions similar to those normally prescribed in apprehended violence orders, such as ‘mandatory AVO conditions’ that the person must not assault, threaten, stalk, harass, intimidate or intentionally or recklessly destroy of damage the property of the said persons, as well as additional conditions such as orders against contacting, approaching or attempting to locate the persons, and orders relating to family and parenting, movement, residence and possessing firearms.

What a SDAPO cannot contain

However, section 87C(2) prohibits the court from imposing prohibitions, restrictions, requirements and other provisions that would require the person:

• To answer questions or provide information orally, 
• To answer questions, or to provide documents or other information, that are subject to client legal privilege,
• To disclose a protected confidence, which is a communication made by a person in the course of a relationship in which the person was acting in a professional capacity, and the person was under an express or implied obligation not to disclose the contents of the communication, whether or not the obligation arose under law or could be inferred from the nature of the relationship between the persons,
• To provide documents or other information held by the person in confidence as part of a banking business, unless the person to whom the confidence is owed has consented, or the order specifically requires the provision or production of the documents or other information concerned, or documents or other information of the kind concerned, or
• To answer questions, or to provide documents or other information, that would result in a disclosure prohibited by a provision of another Act, other than the Evidence Act 1995.

Prohibition on using information disclosed under a SDAPO in other proceedings

Section 87C(3) prohibits any answer, document or other information given by a person in compliance with a SDAPO to be used against the person in any civil or criminal proceedings, other than proceedings for the offence of breaching a SDAPO or one in which the person is compelled to give evidence.

Duration of a SDAPO

Section 87D provides that the duration of a SDAPO must not exceed 5 years, which commences on the day the person is served.

However, the section makes clear that an application for a second or subsequent SDAPO can be made, which of course has the practical effect of extending that period.

Appeals against SDAPOs

Section 87F provides that the person who applies for a SDAPO and the person against whom an SDAPO is sought or made has the right to appeal.

In the event the decision is made in the Local Court, the appeal is to the Supreme Court.

In the event the decision is made in the Supreme Court, the appeal is to the Court of Appeal.

Any such appeal must be filed within 28 days of the decision, unless leave is granted to file the appeal on a later date.

The appeal court has the power to confirm, vary or reverse the initial decision, as well as to make a consequential or ancillary order.

The decision of the initial order may stay (suspend) the SDAPO until the appeal is heard, if satisfied it is safe to do so having regard to the need to prevent the person from engaging in domestic abuse.

Varying or revoking a SDAPO

Section 87G empowers a court in which a SDAPO was made to vary or revoke the order at any time on the application of the person who applied for the order, or the person against whom the order was made.

Where the variation or revocation is sought by the person against whom the order was made, the court may only vary or revoke it with the court’s leave (permission), which can only be granted if the court is satisfied there has been a substantial change in the relevant circumstances since the SDAPO was made.

Before granting a variation or revocation, the court must:

• Allow all parties a reasonable opportunity to be heard,
• Have regard to the same factors as those that relate to applications for SDAPOs, and 
• Have regard to the views of any family members, former and current intimate partners, and persons in a domestic relationship with the persons.

Section 87H makes clear a court that makes a SDAPO may vary or revoke an existing apprehended violence order if satisfied it is proper to do so in all of the circumstances.

SDAPOs prevail over existing AVOs

Section 87I provides that a SDAPO prevails over any apprehended violence order to the extent of any inconsistency.

The offence of contravening a SDAPO

Section 87E contains the offence of contravening a SDAPO.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. A SDAPO was in effect against a person,
2. The person contravened the SDAPO, and
3. The person did so knowingly.

A SDAPO is not in effect unless it has been served on the person.

Legal defences against the charge include self-defence, duress, necessity, mental illness and automatism.

In the event evidence is raised of a legal defence, the onus shifts to the prosecution to prove beyond reasonable doubt that the defence does not apply to the circumstances of the case.

The person is entitled to an acquittal if the prosecution is unable to discharge that onus.

Going to court for an AVO?

If you are facing domestic violence-related legal issues, call Sydney Criminal Lawyers on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who has in-depth, specialist knowledge of the laws, defences and legal processes regarding allegations of domestic violence and a long and proven track record of consistently achieving exceptional outcomes.