Coercive Control Laws, Penalties and Defences in NSW - Criminal Defence Lawyers Australia

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Table Of Contents

Coercive Control Laws NSW
Coercive Control Legislation NSW
What is considered as Coercive Control in NSW?
Implementation and Enforcement
First Charged Under New Coercive Control Laws in New South Wales
Challenges and Considerations
Conclusion

Coercive Control Laws NSW

Coercive control is a pattern of abusive behaviours used to dominate and control an intimate partner, often without physical violence. Recognising its detrimental impact, New South Wales (NSW) has recently criminalised this type of domestic violence.

Coercive Control Legislation NSW

In November 2022, the NSW Parliament passed the Crimes Legislation Amendment (Coercive Control) Act 2022, introducing a specific offence targeting coercive and controlling behaviours within intimate partner relationships. This legislation, effective from July 1, 2024, criminalizes patterns of behaviour aimed at coercing or controlling a current or former intimate partner.

The offence of coercive control carries a maximum penalty of seven years imprisonment prescribed by section 54D(1) of the Crimes Act 1900 (NSW).

What is considered as Coercive Control in NSW?

In NSW, Coercive control is the crime of engaging in a course of conduct against another person that consists of abusive behaviour in circumstances where both the offender and victim are or were intimate partners where the offender intends the course of conduct to coerce or control, and a reasonable person would consider that the course of conduct would be likely, in all the circumstances, to cause any or all of the following, whether or not the fear or impact is in fact caused:

Fear that violence will be used against the victim or another person; or
A serious adverse impact on the victim’s capacity to engage in some or all of his or her ordinary day-to-day activities.

The type of offending behaviour here includes psychological abuse, financial abuse, isolation from friends and family, monitoring movements, and threats of harm. The legislation aims to address non-physical forms of domestic abuse that can have severe and lasting impacts on victims.

This is outlined in section 54D(1) of the Crimes Act 1900 (NSW).

The course of conduct may be constituted by any combination of abusive behaviours. Whether the course of conduct consists of abusive behaviour must be assessed by considering the totality of the behaviours.

A defence to the offence of coercive control laws in New South Wales is outlined in section 54E. You will be not guilty if the course of conduct alleged was reasonable in all the circumstances. The practical application of this defence is yet to be interpreted and applied through case law in New South Wales. The only further assistance the legislation provides to this is seen in section 54D(2), namely, that the course of conduct was reasonable in all the circumstances is taken to be proven if the evidence adduced is capable of raising an issue as to whether the course of conduct is reasonable in all the circumstances and the prosecution does not prove beyond reasonable doubt that the course of conduct is not reasonable in all the circumstances.

A further issue that the new laws raise is the procedural requirements of establishing a specific incident of alleged abusive behaviour used to form part of the course of conduct. Here the prosecution is not required to allege the particulars that would be necessary if it was charged as a separate offence. Instead, the prosecution is required to allege the nature and description of the behaviours that amounts to a course of conduct, and the particulars of the period of time over which the course of conduct took place. The court is required to be satisfied beyond reasonable doubt that the evidence establishes a course of conduct that consists of abusive behaviour. However, the court is not required to be satisfied of the particulars of any specific incident of behaviour alleged to form part of the course of conduct that it would have to be satisfied of it the incident were charged as a separate offence.

Implementation and Enforcement

The enactment of the coercive control offence was preceded by a comprehensive period of training and public awareness campaigns to ensure effective implementation. This preparatory phase was crucial, given the complexities involved in identifying and prosecuting patterns of coercive behaviour. The NSW Police Force and other stakeholders received specialised training to recognise signs of coercive control and to handle such cases sensitively and effectively.

Since the law’s commencement, NSW Police have been actively investigating reports of coercive control. In the first three months, over 80 cases were under investigation, reflecting both the prevalence of such behaviours and the increased awareness among the public and law enforcement agencies.

First Charged Under New Coercive Control Laws in New South Wales

A man, who cannot be named due to legal restrictions, was charged and arrested in July last year under New South Wales new coercive control laws. The court heard that the man committed violence in the home where kids were present and the doors were locked.

The court also heard evidence of the man controlling the victim’s finances, restricted phone access, and restricted support networks by moving the woman away. The court was told that the man has said to the woman, “This will be your last night, I am going to murder you”.

Magistrate Wright founds the facts disturbing and sentenced the man to imprisonment of 18-months to be served in the community by way of an intensive corrections order (ICO). As part of the ICO order, the mas is required to wear and maintain an electronic ankle monitor and 120 hours of community service.

Challenges and Considerations

While the criminalisation of coercive control marks a significant advancement in protecting victims of non-physical domestic abuse, several challenges persist:

Evidentiary Hurdles: Proving a pattern of coercive behaviour requires comprehensive evidence, often relying on victim testimony, which can be emotionally taxing and may deter reporting.
Awareness and Training: Continuous education for law enforcement, legal professionals, and the public is essential to recognize and address coercive control effectively so as to avoid innocent people being charged with the new offence.
Cultural Sensitivity: Understanding the diverse cultural contexts within NSW is vital to ensure the laws are applied equitably and effectively across all communities.

Conclusion

The introduction of coercive control legislation in New South Wales represents a pivotal step in addressing the nuanced forms of domestic abuse that extend beyond physical violence.

Early cases under this law provide critical insights into the application and interpretation of the legislation. Ongoing efforts in training, public awareness, and judicial consideration are essential to navigate the complexities inherent in prosecuting coercive control and to ensure the law serves its intended purpose of protecting victims and deterring abusive behaviours.

Published on 04/03/2025