New South Wales has become the first Australian state or territory to create a dedicated offence criminalising coercive control, after laws came into effect on 1 July 2024.
The laws were passed in 2022, however, they were prescribed to start at a later date to provide time for training, resourcing, education and raising community awareness of domestic violence in various forms.
Coercive Control Meaning
Coercive control is a form of domestic abuse that involves patterned behaviour which essentially has the effect of denying victims their autonomy and independence.
It is often non-violent and psychological in nature, and can encapsulate a range of actions including assaults, threats, intimidation, and humiliation.
Such behaviour can make it increasingly difficult for victims to leave a relationship, due to the power the perpetrator holds.
Coercive control has been identified as a common precursor to intimate partner homicide, with 99% of relationships between victims and offenders able to be characterised by the abuser's use of coercive and controlling behaviours.
NSW Police have undergone mandatory coercive control training involving modules which outline how to recognise, respond to and record allegations of coercive control.
The Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) has amended the Crimes Act 1900 (NSW) introducing Division 6A labelled 'abusive behaviour towards intimate partners'.
In introducing the Act, then Attorney General Mark Speakman noted: "coercive control is a systematic attack on liberty. It is insidious domestic abuse involving systematic patterns of behaviour with the cumulative effect of denying victims their independence and autonomy...
"The abuse could be physical, sexual, psychological or financial. It does not show itself in the same way each time or even in physical symptoms each time. Abusers often take pains to isolate victim survivors from friends, family and support systems, making protection even harder. It is not as easy to detect as bruises or broken bones, but coercive control can be deadly."
Penalties For Coercive Control
Section 54D criminalises abusive behaviour towards current or former intimate partners, with a maximum penalty of 7 years imprisonment applicable.
However, it is a 'table 1' offence which means that it will be dealt with in the Local Court unless the prosecution or the defendant elects to take it to the District Court.
In the Local Court, the maximum penalty that can be imposed is limited to 2 years imprisonment and/or a $11,000 fine.
What The Prosecution Must Prove
The prosecution is required to prove, beyond reasonable doubt, that:
- You engaged in a course of conduct against another person that consists of abusive behaviour,
- You and the other person are or were intimate partners, and
- You intended the course of conduct to coerce or control the other person.
It must also be satisfied that a reasonable person would consider that the course of conduct would be likely, in all the circumstances, to cause fear of violence, or a serious adverse impact on the capacity of the other person to engage in some or all of their ordinary day-to-day activities.
What Is Abusive Behaviour?
Abusive behaviour is defined as violence or threats against, or intimidation of, a person, or coercion or control of the person against whom the behaviour is directed, as per section 54F.
The Act provides that 'abusive behaviour' may be constituted by behaviour that:
- causes harm to the person, a child or another, if they fail to comply with demands made of the accused,
- is economically or financially abusive (such as unreasonably restricting or regulating a person's finances),
- shames, degrades, or humiliates,
- directly or indirectly harasses a person,
- monitors or tracks a person's activities, communications, or movements (whether by physically following the person, using technology or in another way),
- causes damage to or destruction of property,
- prevents the person from:
- making or keeping connections with the person's family, friends, or culture,
- participating in cultural or spiritual ceremonies or practice, or
- expressing the person's cultural identity.
- causes injury or death to an animal, or otherwise makes use of an animal to threaten a person,
- deprives a person of liberty, restricts a person's liberty, or otherwise unreasonably controls or regulates a person's day-to-day activities.
The Act notes that unreasonable control may entail unreasonable demands about how a person may exercise their personal, social, or sexual autonomy, and making threats of negative consequences for failing to comply with the demands.
It may also involve denying a person access to basic necessities including food, clothing or sleep or withholding necessary medical or other care.
A course of conduct will involve behaviour that is engaged in repeatedly and/or continuously, with it not necessary for an unbroken series of incidents to be present, as per section 54G.
It may be constituted by any combination of abusive behaviours, and whether the course of conduct consists of abusive behaviour must be assessed by considering the totality of the behaviours.
Defence To Coercive Control Laws
A defence is available under section 54E where the accused person can prove that the course of conduct was reasonable in all of the circumstances.
This defence will be taken to be proven if 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.
For more on domestic violence laws, speak to our criminal lawyers Sydney team for a confidential consultation.
Coercive Control Queensland
Queensland became the second jurisdiction in Australia to pass laws that criminalise coercive control as a stand-alone offence as of 6 March 2024. The coercive control laws in Queensland will officially commence into force in 2025 with a maximum penalty of 14 years imprisonment.
The Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023 passed in Queensland Partliament on 6 March 2024.
Coercive Control Victoria
Currently there is no stand-alone offence to criminalise coercive control in Victoria. In Victoria, the laws recognise that coercive control is family violence and is a main feature of the State's civil law Family Violence Protection Act (2008).
Coercive Control South Australia and Western Australia
In South Australia and Western Australia, there is no stand-alone offence that criminalises coercive control. However, in Western Australia, coercive control is recognised in other legislation, such as section 5A(1) of the Restraining Orders Act 1997 defines "family violence" as including any behaviour by the person that coerces or controls the family member or causes the member to be fearful.
Coercive Control Tasmania
Tasmania is the only jurisdiction in Australia to have criminalised non-physical types of family violence, including economic and emotional abuse or intimidation in the Family Violence Act 2004 (TAS). This covers current and previous intimate partners and victims/survivors are not required to provide proof on harm. The maximum penalty is up to two years imprisonment.
Coercive Control Northern Territory
The Northern Territory does not currently have a stand-alone coercive control laws. However, the NT government have introduced coercive control in domestic violence laws, permitting courts to consider coercive control and the criminal history of people involved in domestic violence orders as part of the proposed laws.
Coercive Control Australian Capital Territory
The ACT does not currently have stand-alone coercive control laws, however is expected to follow NSW's approach to criminalise it as a stand-alone offence.
Coercive Control Examples
Coercive control examples include the following:
- Isolating someone from their friends and family, controlling someone else's finances, monitoring someone else's time or activities, or engaging in actions constituting humiliation or degradation.
- Withholding financial support necessary for meeting the reasonable living expenses of a person, or another person living with or dependent on the person, in circumstances in which the person is dependent on the financial support to meet the person's living expenses.
- Preventing, or unreasonably restricting or regulating, a person seeking or keeping employment or having access to or control of the person's income or financial assets, including financial assets held jointly with another person.
- Behaviour that shames, degrades or humiliates.
- Behaviour that directly or indirectly harasses a person, or monitors or tracks a person's activities, communications or movements, whether by physically following the person, using technology or in another way.
- Behaviour that causes harm to the person against whom the behaviour is directed, or another adult, if the person fails to comply with demands made of the person.
- Behaviour that causes harm to a child if a person fails to comply with demands of the person.
- Behaviour that causes damage to or destruction of property
- Behaviour that prevents the person from doing any of the
following, or otherwise isolates the person:
- making or keeping connections with the person's family, friends or culture,
- participating in cultural or spiritual ceremonies or practice,
- expressing the person's cultural identity
- Behaviour that causes injury or death to an animal, or otherwise makes use of an animal to threaten a person.
- behaviour that deprives a person of liberty, restricts a
person's liberty or otherwise unreasonably controls or
regulates a person's day-today activities.
- This may include making unreasonable demands about how a person exercises the person's personal, social or sexual autonomy and making threats of negative consequences for failing to comply with demands.
- This may include denying a person access to basic necessities including food, clothing or sleep.
- This may include withholding necessary medical or other care, support, aids, equipment or essential support services from a person or compelling the person to take medication or undertake medical procedures.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.