The Criminal Offence of Coercive Control in New South Wales

A Bill has passed both houses of the New South Wales parliament which makes it a discrete criminal offence punishable by up to 7 years in prison for a current or former intimate partner to exert coercive control over another.

The new law

The Crimes Legislation Amendment (Coercive Control) Bill 2022 (NSW) inserts a new section 54D into the Crimes Act 1900 (NSW) which makes it an offence where the following elements (also known as ingredients or criteria) are proved beyond a reasonable doubt:

1. A person is was at least 18 years of age (‘the defendant’),
2. The defendant engaged in a course of conduct against another person (‘the complainant’)
3. The defendant’s course of conduct consisted of abusive behaviour against the complainant,
4. The defendant and complainant were or are intimate partners, 
5. The defendant intended by the course of conduct to coerce or control the complainant, and
6. A reasonable person would consider that the course of conduct would be likely, in all of the circumstances, to have caused any or all of the following, whether or not the fear or impact was in fact caused:

• Fear that violence would be used against the complainant or another person, or
• A serious adverse impact on the capacity of the complainant to engage in some or all of his or her ordinary day-to-day activities. 

Meaning of abusive behaviour

Section 54F of the Act defines ‘abusive behaviour’ as that which consists of or involves:

1. Violence or threats against, or intimidation of, the complainant, or 
2. Coercion or control of the complainant. 

It explains that abusive behaviour may include that which:

• Causes harm to a child if a person fails to comply with demands made of them,
• Causes harm to the complainant, or another adult, if the complainant fails to comply with demands made of the person,
• Is economically or financially abusive to the complainant, 
• Shames, degrades or humiliates the complainant,
• Directly or indirectly harasses the complainant, or monitors or tracks his or her activities, communications or movements, whether by physically following the complainant, using technology or in another way, 
• Damages or destroys the complainant’s property,
• Causes injury or death to an animal, or otherwise makes use of an animal to threaten the complainant, or
• Deprives the complainant of his or her liberty, restricts his or her liberty or otherwise unreasonably controls or regulates his or her day-to-day activities
• Prevents the complainant from doing any of the following ,or otherwise isolating him or her from:(i) making or keeping connections with his or her family, friends or culture,

  (ii) participating in his or her cultural or spiritual ceremonies or practices, or

  (iii) expressing his or her cultural identity.

Examples of abusive behaviour

In relation to economic or financial abuse, the definition provides the following examples:

• Withholding financial support necessary for meeting the reasonable living expenses of the complainant, or another person living with or dependent on the complainant, in circumstances where the complainant is dependent on the financial support to meet his or her living expenses.
• Preventing, or unreasonably restricting or regulating, the complainant seeking or keeping employment or having access to or control of his or her income or financial assets, including financial assets held jointly with another person.

In relation to deprivation of liberty, the definition provides these examples:

• Making unreasonable demands about how the complainant exercises his or her personal, social or sexual autonomy and making threats of negative consequences for failing to comply with the demands 
• Denying the complainant access to basic necessities including food, clothing or sleep.
• Withholding necessary medical or other care, support, aids, equipment or essential support services from the complainant or compelling him or her to take medication or undertake medical procedures.

Meaning of course of conduct

Section 54G defines the term ‘course of conduct’ as behaviour engaged in repeatedly and/or continuously.

It explains that such conduct does not have to be a series of unbroken incidents, nor do the events need to have occurred in immediate succession.

The definition encompasses conduct within New South Wales as well as that which occurs within the state and another Australian jurisdiction.

Meaning of intimate partner

The Act defines an ‘intimate partner’ as someone who has been or is:

• Married to the complainant,
• A de facto partner of the complainant, or
• In an intimate personal relationship with the complainant, whether or not this was or is sexual in nature.

Criticism by domestic violence support groups

The Bill was passed despite criticism by domestic violence support groups to the effect that it fails to cover all relationships and does not sufficiently define the terms ‘coercive’ and ‘control’.

As to the former, it excludes family relationships such as those with children, parents, grandparents and the like.

As to the latter, and despite the definitions and examples provided in the legislation, the groups feel there needs to be more in that regard.

These groups believe there should have been greater community consultation on the laws before they were considered by parliament. 

Attorney General Mark Speakman has contended that there was significant stakeholder engagement, with eight rounds of consultation over two-and-a-half years and 30 round tables. 

Aims to save lives 

Mr Speakman says the laws do not pretend to be “perfect” but, rather, are aimed at “saving lives,” as domestic and family violence continues to go unabated across the state. 

The laws have been passed under a promise by the Government that they will be reviewed in the coming years. 

Both England and Wales passed similar laws in 2015, and say the success of their implementation was a significant commitment to resources and training for front line service staff, as well as to raising community awareness of coercive control.  

Link between coercive control and physical violence

Coercive control is a complex area to legislate because it is not always easily identifiable although it is broadly considered to be behaviour which tends to be ‘controlling’ in nature, or aimed at limiting a person’s independence. 

Last year, a New South Wales domestic violence review team headed by Professor Evan Stark found that 99 percent of intimate partner homicides between 2008 and 2016 in NSW were preceded by coercive control. 

Professor Stark, who is widely regarded as the world’s leading authority on coercive control, has said time and again the seriousness of coercive control cannot be exaggerated. 

The Queensland Government is set to be next to pass such laws, having recently introduced a Bill into parliament with a view to making coercive control a standalone criminal offence in that state also.