WHAT IS COERCIVE CONTROL?

NEW COERCIVE CONTROL AND DOMESTIC ABUSE LAWS

The Lower House of the NSW Parliament has passed a new Bill aiming to criminalise coercive control and domestic abuse. The underlying aim is to ‘give victims confidence to report’ this behaviour and to increase deterrence for offenders. This law is focused on early detection and prosecution of the precursor behaviours to domestic violence.

The major changes include:

• Introduction of the ‘Coercive Control Offence’
• New offence of ‘Domestic Abuse’
• Defining ‘Abusive Behaviour’ & ‘Domestic Abuse’
• Coercive Control Offence and Domestic Abuse to be classified as ‘Domestic Violence Offences’
• Extending Victim Impact Statements for the Coercive Control Offence

You can access the new Bill here and read the Second Reading Speech here.

WHAT IS COERCIVE CONTROL?

An adult commits this offence if there is repeated or continuous abusive behaviour against a current or former intimate partner. There must be an intention to coerce or control the victim. This behaviour must either reasonably cause fear that:

• Violence will be used against the victim or someone else OR
• There will be a serious adverse impact on the victim to engage in their daily activities

WHAT IS ABUSIVE BEHAVIOUR?

• Violence, threats or intimidation
• Coercion or control of the victim
• Behaviour that causes harm to a third person (including children) if demands are not met
• Economic or financial abuse
• Shaming, degrading or humiliating
• Harasses a person, tracking person’s activities, communications or movements
• Damage/destruction of property
• Isolating a person from friends and family
• Isolating the person from their culture including ceremonies and practices
• Injuring or killing an animal
• Depriving a person of liberty or unreasonably controlling their day-to-day activities

A person charged with this offence can rely upon the defence that the conduct was reasonable in all the circumstances.

The maximum penalty is seven years imprisonment, which is an increase from the previously considered maximum penalty of five years imprisonment.

DOMESTIC VIOLENCE OFFENCES NOW INCLUDES ‘DOMESTIC ABUSE’

There is a special category of offences known as ‘Domestic Violence Offences’ (DV Offences). Judicial Officers and Police Officers are guided by the DV Offences laws in sentencing and when considering whether to apply for Apprehended Violence Orders (AVOs).

AVOs are able to be made in the domestic or personal circumstances. These are known as Apprehended Domestic Violence Orders (ADVO) or Apprehended Personal Violence Orders (APVO). These orders can be made on an interim basis for the protection of the alleged victims.

The new law expands DV Offences to include any conduct that constitutes Domestic Abuse.

WHAT IS DOMESTIC ABUSE?

The Crimes (Personal and Domestic Violence) Act 2007 will define ‘Domestic Abuse’ to include any conduct that is:

• Violent or threatening behaviour
• Coercing or controlling
• Causes fear for the person’s or other’s safety or wellbeing
• Verbally abusive
• Shaming, degrading or humiliating
• Intimidation
• Stalking or monitoring a person
• Damages or destroys property
• Injuring or causing death to an animal
• Keeping a person from making, or keeping connections with, friends, family or culture
• Depriving or restricting liberty or regulating day-to-day activities
• Causing a child to hear or witness or exposed to domestic abuse

This new law is targeting the precursor behaviours which typically occur before violence in domestic settings.

DOMESTIC ABUSE EXPANDS GROUNDS FOR ADVOS

Police officers are obliged to make Provisional Orders if they believe that a DV Offence has occurred and have good reason to believe an order needs to be made immediately.

This means that the grounds available to NSW Police to apply for AVOs has been hugely expanded. If the NSW Police Officer believes that Domestic Abuse will occur, then they are empowered to apply for a Provisional ADVO and make an arrest.

DIFFERENCES BETWEEN ABUSIVE BEHAVIOUR AND DOMESTIC ABUSE

The scope of Domestic Abuse is broader, as it encapsulates all domestic relationships. Abusive Behaviour is only applicable to current or former intimate relationships.

Domestic Abuse may just be a single act or omission. As compared to the requirement for a ‘course of conduct’ to be committed to be categorised as Abusive Behaviour.

LET’S LOOK AT AN EXAMPLE:

Julie and John have been dating for three months and have recently moved into a flat together. Julie immediately demanded that John stays home and takes fewer shifts at his casual job. John couldn’t see a legitimate purpose for this demand. However, he complies as he wants to appease Julie.

Following this, Julie slowly starts excluding John from financial decisions and eventually blocks his access to his own bank accounts. This results in John having to rely on Julie for his living expenses and is confused as to why Julie is doing this. When John tries to work more shifts or access his bank accounts, Julie makes hurtful comments to John and belittles him. John feels isolated and controlled so he approaches the police. The police investigate and charge Julie with coercive control and apply for a Provisional ADVO on the grounds of Domestic Abuse (being financial abuse).

Julie pleads not guilty to the charge and does not consent to the ADVO. The charge of coercive control and the ADVO is set down for hearing. The Magistrate finds the offence proven on the criminal standard (beyond reasonable doubt) that Julie intended to control John and that this reasonably would impact on John’s day-to-day activities.

In determining whether to make the Final ADVO, the Magistrate will decide on the civil standard (balance of probabilities) whether there are reasonable grounds to fear that further financial abuse would continue. As a result, the Final ADVO is made.

COMMENTARY

There is broad backlash against this new law, however not from the groups you may have expected. Notably, the loudest comments are coming from legal centres and domestic violence organisations.

These organisations include:

• Domestic Violence NSW
• Women’s Legal Service NSW
• Redfern Legal Centre
• Legal Aid NSW

The major areas of concern focus on the lack of training provided regarding domestic relationships and the short window of implementation. The organisations are calling for judicial officers, lawyers and NSW Police to receive training for:

• The dynamic nature of domestic relationships
• The nuances of coercive control
• Identifying the primary victim

Suggested improvements to the new law include:

• Minimum number of Domestic Abuse/Abusive Behaviour incidents to be specified
• Domestic Abuse to include threatening a person’s visa or immigration status
• Reconsideration of the element of ‘intention’
• Broadening the category of relationship beyond ‘intimate’ for the CC Offence

At Morrisons we are specialist criminal and traffic lawyers based in Wollongong and the Southern Highlands. If you require advice or representation, you can book an appointment with one of our expert criminal lawyers.