coercive control bill passes through parliament

After years of campaigning by activists and stakeholders, coercive control is now criminalised in NSW.

Abigail spoke to the historic legislation, which is the first of its kind in Australia, as it passed through parliament.

Ms ABIGAIL BOYD (21:01): I speak on behalf of The Greens on the Crimes Legislation Amendment (Coercive Control) Bill 2022. A huge part of my personal motivation for campaigning to criminalise coercive control is because a coercive control offence will aid in educating the public more broadly about what coercive control is so that we send a clear message of what is unacceptable conduct in a relationship, and so that coercive control can be identified more readily both by those in abusive relationships as well as by family and friends of those in abusive relationships and by the police, members of the judiciary and other frontline workers. To that end, it is important to again set out what we mean by coercive control in this context. When people think of domestic abuse, they tend to think of physical violence. But domestic abuse is often much more complex than that. Many victims of domestic abuse live in a constant state of fear, in relationships marked by dangerous patterns of controlling behaviour. This abuse is called "coercive control".

Coercive control is much broader than our existing New South Wales criminal offences of stalking and intimidation. Perpetrators of coercive control, also aptly named "intimate terrorism", seek to control their victims with actual or threatened harm through a course of behaviour. Whether it is demanding that partners cut contact with their friends or family, restricting their access to money, monitoring their calls and messages or directing their day-to-day activities, these patterns of controlling behaviour are perpetrated to control another person, to remove their liberty and agency, with the intent to cause harm or regardless of the harm that it causes, to that person. Coercive control is a core part of domestic violence and, as we know, is a major predictor of severe physical violence and homicide.

I spoke at length about coercive control and the need to criminalise it in the context of my own bill to criminalise coercive control, which I introduced at the end of 2020—the Crimes (Domestic and Personal Violence) Amendment (Coercive and Controlling Behaviour) Bill 2020. The terms of my bill were developed over several rounds of consultation on a number of exposure drafts with victim-survivors, frontline workers, academics and other experts over more than 12 months. During the joint select committee inquiry into coercive control it was praised by Professor Marilyn McMahon and Dr Paul McGorrery of Deakin Law School for being the "closest to model legislation in Australia" at the time. With some small amendments, which I think we would make now in light of what we have learnt since the bill was put forward, The Greens 2020 bill remains fit for purpose and is still supported broadly by the sector. But that is not the bill before the House. The bill from the Government is unfortunately markedly different.

This Parliament is no doubt capable of achieving significant positive legislative change that reflects and guides social change in the community and can significantly improve the lives of people across the State. This Parliament is demonstrably capable of passing laws that actively hold back societal progress or that cause significant harm to certain groups of people. The significant amount of bad laws passed by this Parliament is sometimes the result of good but misguided intentions, sometimes driven by undesirable motivations and sometimes the product of something more sinister. The bicameral system of Parliament usually shows those laws for what they are, allowing the Legislative Council to scrutinise, make amendments and, occasionally, block them from passing.

In the relatively short period I have been in this place, I believe I have seen the good, the bad and the ugly of lawmaking. One of the most memorable high points for me was when we passed the Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021 in November last year. Those laws were not perfect, but they were, in light of the context in which they were passed and with a conservative Government in place, really pretty good, and I said as much at the time. A lot can be learnt from the way those laws were drafted and passed and by looking at the social context at the time that they were passed. Unlike the process for this coercive control bill, which I will come to in a bit, the process for the sexual consent reforms was far more inclusive and trauma informed.

On the back of a campaign led by victim-survivors, including Saxon Mullins, Chanel Contos and Grace Tame, and after years of many others advocating for a definition of "enthusiastic consent" to be included in our laws, and in the context of a significant proportion of young people in particular understanding very well the subject matter of the bill and knowing what it would mean when it came into play, the sexual consent law reforms were brought in at a time that reflected well what was already happening in society, which was doing its bit to solidify the social change that was already occurring. The Law Reform Commission had been consulted, victim‑survivors had been taken seriously at every stage of the process, and the passing of those sexual consent reforms in this place was a rare moment of really excellent lawmaking. That was something we could all be proud of.

In the context of that bill being debated in this place, I disclosed my own experiences. I particularly sought to draw attention to what the impacts of trauma from those experiences look like. I did that feeling that this Parliament was ready to take the experiences of sexual assault of victim-survivors seriously, to understand more about trauma and to be ready to take a trauma-informed approach to other legislation of this kind. The Broderick review reinforced the importance of including victim-survivors in our work to improve the experience of people working in our parliamentary precincts. Again, there have been hiccups, but as part of the parliamentary advisory group advising on these issues, I have seen an admirable effort to take a trauma-informed approach to preparing, announcing and responding to the Broderick review report.

I lay all of that out because I think it is vital to understanding why I and so many others who have been involved for a while in this campaign to criminalise coercive control have been so sorely disappointed by the Government's approach to the bill before us; to explaining why the domestic and family violence sector has been so outraged, upset and disappointed; and to explaining why we feel like we have taken one step forward and five steps backwards when it comes to the major parties in this place understanding how to make legislative change that seeks to join with movements outside of this place in making lasting social change, particularly when it comes to keeping people safe from gendered violence.

The process run by this Government on the coercive control bill and criminalising coercive control generally has been not just insulting to those who have lobbied so hard for it but also illuminating when it comes to seeing just how far we have to go to make the decision-makers in this place finally understand the lasting impacts of trauma. A trauma-informed process understands the dynamics of traumatic stress and how it impacts on survivors in the context of their lives. A trauma-informed process also seeks to ensure safety from harm and re‑traumatisation and to foster true collaboration and power sharing between victim-survivors and decision‑makers. So what does that mean in practice and how did the Coalition Government fail us so badly when bringing about the bill?

Let me say from the outset that I think there was a significant amount of goodwill at the early stages of this process, with real moments of best practice when it came to instituting trauma-informed practices. During the Joint Select Committee on Coercive Control inquiry, the committee was at pains to ensure that victim‑survivors had the support they needed. Committee members were also given training on vicarious trauma, offered tips on how to best handle their questioning so as not to re-traumatise victim‑survivors, and offered opportunities to debrief. However, the committee process was too rushed and the timetable was too truncated. The sector asked for extensions and called for us to take more time to get this right. With that rush came a considerable amount of stress, not just on the already overworked and under-resourced domestic and family violence sector but also on the people who they needed to consult in order to contribute adequately and effectively to the inquiry.

We are past the stage of making laws on these sorts of complex and emotional issues without embracing fully the lived experience of victim-survivors. The frontline workers and peak bodies in the domestic and family violence sector know this. It was vital for the committee to allow adequate consultation with victim-survivors in order for those frontline workers and peak bodies to give us the benefit of their expertise in framing the specifics of the bill. That we did not do that is worse than just the bad bill before us. It imposed unnecessary stress, despair and burden on those who could least bear it. The Coalition Government must take responsibility for that, or at least recognise that it was less than ideal. The sector made it incredibly clear that it wanted more time to contribute submissions to the inquiry. It also made it very clear that it wanted more time to interact with the committee as it conducted its work. I understand that it is not ideal for political parties to try to do as much as they can within a parliamentary term. But if we are going to do this sort of reform properly, it will take as long as it will take.

At the end of the inquiry process and following the report deliberative, I was pretty pleased with where the committee had got to. The recommendations in the report were considered and carefully crafted to ensure that victim‑survivors and marginalised communities were able to have a full say in the drafting of the offence of coercive control. After hearing all the evidence from countless victim-survivors, academics, frontline workers and other experts in favour of criminalising coercive control, the report made it clear that the committee was very much of the view that legislation should only be introduced if done right. The dangers of criminalising coercive control too early without adequate consideration, or before systemic and cultural reforms were underway, were too great to ignore, particularly when it came to the potential impact on First Nations women.

There was a considerable time between the report being released and any action being taken by the Coalition Government to implement its recommendations. Far from taking immediate action to start the education and training required before we would be in a position to criminalise coercive control, and contrary to the recommendation that the changes to apprehended domestic violence orders and civil proceedings to reflect coercive control should be undertaken first, the first hint of a response from the Government was an early draft of the bill. In July this year stakeholders were given six weeks to review and comment on a draft bill that was widely criticised. Again, peak bodies and other stakeholders made it incredibly clear that this was simply not enough time.

To make matters worse, the deadline for submissions to the inquiry into the bill coincided with two other significant deadlines for stakeholders: the core and cluster tranche two tender submissions and the draft NSW Sexual Violence Plan 2022-2027 consultation, both of which were incredibly important and time consuming in their own right. The sector was alarmed by the rushed time line for all three deadlines. It sought an extension on the core and cluster deadline and the sexual violence plan had a mere three-week consultation period. It begged for more time to consult with victim-survivors to be able to adequately contribute to the draft bill that had been distributed. But as the domestic and family violence sector does time and time again, they pulled together against the odds, shared their expertise with one another and did their very best to inform the Attorney General what he needed to do to make the bill fit for purpose.

But the thing about consultation is that just doing it is not enough. Inviting and receiving submissions is not the point of it. It is what one does after, and that means listening to and incorporating the feedback received. There is no room or tolerance for hubris at that point. The second draft of the bill, which we have before us today, was not publicly consulted on. It contained some dramatic changes from the first draft—most notably the dropping of the recklessness element, which makes it wildly different from every other coercive control measure in the world—and simply did not reflect the vast majority of the feedback that was submitted on the first draft. The Government cherrypicked the feedback it liked best and has produced, as far as I know, the most conservative and perpetrator‑friendly version of laws to criminalise coercive control produced anywhere in the world. There were some further conversations about this second draft that ostensibly sought consultation with specific invited stakeholders, but it appears that again the Attorney General had selective hearing when it came to how well he heard that feedback.

From the parliamentary inquiry into the bill, it appears that very few people suggested that the current draft of the bill was at all fit for purpose. Let us talk about that inquiry, which we had to drag the Government kicking and screaming to the table. Having dumped this vitally important bill on us just weeks ahead of the end of the parliamentary term, the Government apparently thought we would just pass it without proper scrutiny and consideration. If the Government had been paying attention to the workings of this upper House over the past 3½ years, it would have known that that approach was never going to fly. We do not pass such contentious pieces of legislation without having thoroughly assessed them. The idea that we would just pass it within a week of first seeing it thankfully underestimates the professionalism and dedication to their role of the crossbench members in this place.

As a show of good faith and to demonstrate that this is not a partisan pursuit, I moved that the bill be inquired into not by an Opposition- or crossbench-led parliamentary committee but by a Government‑led committee. That was a leap of faith but, knowing the members of the Standing Committee on Social Issues, I was confident that they would treat the issue fairly and not seek to make it into a political circus. On the whole that was the case, and I sincerely thank the Hon. Scott Barrett for his role as chair of that committee as well as the other members of the committee for hearing me out and not using their numbers to dismiss my concerns.

However, I need to mention one part of that process that I believe to have been needlessly cruel. Out of respect for our parliamentary committee process, I will keep the full details of it off the public record and instead make a general comment. Those responsible will know who and what I am talking about. When members let their political ambitions get in the way of their humanity, they need to take a pause and look at exactly what they are here for. Victims, victim-survivors and their families should never be used by politicians in an effort to score political points. In the circumstance I am alluding to, the consequences have been profoundly harmful, and that is on you. I will read a statement from Dr Nithya Reddy, whose sister was tragically murdered in March 2019. She writes:

I thank Miss Abigail Boyd for conveying my message to Legislative council tonight. I, Dr Nithya Reddy, am a reluctant advocate in this space, having lost my beloved sister dentist Dr Preethi Reddy to a brutal act of murder in March 2019.

I am not in this space for recognition, as a way to heal my trauma or be congratulated. Simply I want the best legislation that will really save lives and others like me & my parents won't be given a life sentence of pain & grief.

I do not support the NSW governments crimes legislation coercive control bill 2022 being debated tonight without some key amendments. Most of such amendments are those tabled in the legislative council Inquiry 31-10-22 as they have been unambiguously asked for by key expert sector stakeholders who partook in that inquiry.

Please pay careful consideration and heed to what the DV sector workers with decades of experience are screaming for in this space.

We need transparency & public accountability and that needs an independent Implementation task force at the very least.

I thank Dr Nithya Reddy for allowing me to read her statement. I will speak during the Committee phase on how the bill must be corrected to make it fit for purpose. I thank the member for Sydney and other members in the other place who worked hard to include some great amendments in the bill to allow it to operate in a way that will ameliorate the worst of its flaws, allow oversight and transparency and, most importantly, allow those with expertise to direct and shepherd this reform in the way that they should be entitled to and in the way that the joint select inquiry was keen for them to do. The Greens will not support the bill without those amendments, which breaks my heart because I have spent the entire parliamentary term trying to criminalise coercive control. The Greens oppose the bill.

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