Helen Saulnier 
In 2022, the New South Wales government introduced a bill to criminalise coercive and controlling behaviour. The bill amended the Crimes Act 1900 (NSW) by introducing Part 3 Division 6A which commenced on 01 July 2024. The new division criminalises coercive and controlling behaviour towards current and former intimate partners. The offence is contrary to section 54D Crimes Act 1900 (NSW). According to Penrith Criminal Lawyers, section 54D requires the following elements:
- The accused person is an adult.
- The accused engages in a course of conduct against their current or former intimate partner that consists of abusive behaviour.
- The accused and other person are or were intimate partners.
- The accused intends the course of conduct to coerce or control the other person.
- A reasonable person would consider the course of conduct likely in all the circumstances to cause any or all of the following (whether or not the fear is actually caused):
- fear that violence will be used
- a serious adverse impact on the capacity of the current or former intimate partner to engage in some or all of the person’s ordinary day-to-day activities.
The offence is punishable by a maximum penalty of up to 7 years jail which highlights the seriousness of the offence.
What is meant by a Course of Conduct?
The division does not specify the minimum number of incidents required to comprise a course of conduct. Section 54G provides that a course of conduct can be behaviour which is either repeatedly or continuously or both and it can be as an unbroken series of incidents or in immediate succession. Penrith Criminal Lawyers also advise that the behaviour need not be limited to this state and can include behaviour in another state or jurisdiction.
Statutory Defence
The division has also created a statutory defence in section 54E which states that it is a defence to the offence if the course of conduct was reasonable in all the circumstances.
The offence does not capture all conduct which can be coercive or controlling but only conduct with which the accused intends to coerce or control their current or former intimate partner.
Further, the statutory defence allows an acquittal if proved that the conduct was reasonable in all the circumstances.
The rationale for the statutory defence can be summarised by the following example:
Consider a married couple with shared assets. If one spouse has a gambling problem and the other restricted access to their finances, such restriction may impair the movements or activities of the spouse with the gambling problem and could arguably give rise to a serious adverse impact on them following a reasonable appraisal of the circumstances. The statutory defence allows the spouse controlling the finances to argue their conduct was reasonable in all the circumstances.
Why the new offence?
The rationale for creating the new offence was provided by the NSW attorney general in the second reading speech of the bill which highlighted the following disturbing statistic:
Out of 112 intimate partner domestic violence homicides in New South Wales between 2008 and 2016, the Domestic Violence Death Review Team found that coercive controlling behaviours were present in all but one case.
Going to Court for a domestic violence charge? Get help from Penrith Criminal Lawyers to discuss your options.
