Crimes (Domestic and Personal Violence) Amendment (Coercive and Controlling Behaviour Bill) 2020 - Exposure Draft 4 - Briefing Paper
The Crimes (Domestic and Personal Violence) Amendment (Coercive and Controlling Behaviour Bill) (the Bill) establishes a new offence of abusive control and provides for certain procedural and other protections in relation to that offence1. The Bill is largely modelled on the equivalent provisions introduced in Scotland in 2018.
The provisions of the Bill are to come into effect 12 months after the date of assent.
Schedule 1:
New section 14A sets out the new offence of abusive control, punishable with 10 years prison (or 2 years if dealt with summarily)2 and/or 50 penalty units.3
Section 14A(2) describes a course of behaviour4 which is abusive as behaviour (occurring on 2 or more occasions5) which is violent (including physically or sexually violent6), menacing or intimidating7 or which has, or is reasonably likely to have, the effect of:
(a) making a person dependent on, or subordinate to, them
(b) isolating a person from friends, family or other sources of support
(c) controlling, regulating or monitoring a person’s day-to-day activities
(d) depriving a person of, or restricting a person’s, freedom of action
(e) frightening, humiliating, degrading or punishing a person8
which a reasonable person would consider likely to cause, and which the offender intends to cause or is reckless as to whether9 the course of behaviour causes, the target to suffer physical, emotional or psychological harm (including fear, alarm or distress)10.
Section 14A(3) clarifies that behaviour may, or may be reasonably likely to, have that effect on a target even if the conduct is directed at a third person or a companion animal or other domesticated animal, or the property of the target.11
Section 14A(4) makes it clear that financial control may constitute abusive control.12
Section 14A(5) provides that the offence can be committed by a course of behaviour engaged wholly or partly in NSW, or by or against a person ordinarily resident in NSW.13
Section 14A(6) and (7) provide for a rebuttable presumption that the accused person and the target are or have been in a domestic relationship.14
Section 14A(8) clarifies that a course of behaviour that began before the commencement of the Bill, but occurring on at least one occasion following such commencement, is covered by this section.15
Section 14A(9) clarifies that ‘behaviour’ includes (but is not limited to) saying or otherwise communicating something as well as doing something, omitting to do something, or asking or otherwise causing a person to do something.16
Section 14B provides for a review of the new provisions introduced by the Bill to occur 3 years after implementation, to ensure they are achieving their policy objectives.17
The Bill also amends Section 40(5) of the Act to require an interim Apprehended Violence Order to be made against the accused person for the protection of the target.18 Section 36 of the Act is amended to include abusive control offence behaviours in the list of prohibitions in Apprehended Violence Orders.
Schedule 2:
Section 2.2 makes a number of amendments to the Criminal Procedure Act 1986 to treat ‘abusive control offence’ in the same way as a ‘prescribed sexual offence’ for certain procedural purposes:19
Section 290(2) – Division 1 (Evidence in certain sexual offence proceedings) is extended to apply to (1) proceedings in respect of an abusive control offence (including committal proceedings) and (2) proceedings in which a person stands charged with an abusive control offence, whether the person stands charged with that offence alone or together with any other offence (as an alternative or additional count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.
Section 290A(1) - definitions of ‘accused person’ and ‘complainant’ amended to allow reference to the accused person and the complainant in relation to abusive control offences.
Section 291(1) – evidence from the complainant to be heard in camera unless the court otherwise decides.
Section 291A(1) – allows the court to direct that any other part of proceedings, or the entire proceeding, be heard in camera.
Section 291C(1) and (2) – allows media representatives to hear in-camera evidence.
Section 294A(1) – prevents the accused from directly cross-examining the complainant.
Section 294B(1) and (1A)(a) – enables evidence to be given by the complainant using closed-circuit television or other alternative means.
Section 294C(1) and (6) – enables the complainant to have a support person with them when giving evidence.
Section 2.1 inserts a new Section 25AB into the Crimes (Sentencing Procedure) Act 1999 which requires the court to have regard, when sentencing an offender, to the trauma of abusive control as well as the risk of the victim being subjected to further abusive control offences by the offender.
Footnotes:
1 NB: Section 76(8)-(10) of the E&W Act provides a defence (but not in the case of causing the target to fear that violence will be used against them) if the accused shows that they believed they were acting in the target’s best interests or that the behaviour was in all the circumstances reasonable. Further, the defence is taken to have been proven if they have sufficient evidence to raise the issue and the contrary is not proven beyond reasonable doubt. In line with the Scottish Act, it is not proposed to include such a defence in the NSW Bill.
2 See Section 14A(9) and (10) of the Bill.
3 Scottish offence carries a 12 month (summary) / 14 year (indictment) sentence (Section 9). Both E&W and Irish Acts carry a 12 month (summary) / 5 year (indictment) sentence (section 76(11)).
4 “Course of behaviour” is the wording used in the Scottish Act (eg, Section 1(1)(a)).
5 Consistent with Section 10(4) of the Scottish Act.
6 “Sexual violence” has been explicitly included in this section to affirm that sexual violence can occur within domestic relationships - see Section 10(4)(11) of the Bill for definition of ‘violent behaviour’.
7 Follows the wording in Section (2)(a) of the Scottish Act, except for the substitution of “threatening” with “menacing” (as defined in Section 249M of the Crimes Act 1900) to make clear the serious nature of the threatening behaviour referred to (and thereby limiting the possibility of the section being sought to be used by perpetrators against victims).
8 Paragraphs (a) to (e) follow the wording used in Section 3(3) of the Scottish Act.
9 Wording consistent with Scottish Act; E&W Act uses ‘knows or ought to know’; Irish Act also uses ‘knowingly’.
10 Follows the wording used in Sections 1(2) and 1(3) of the Scottish Act. E&W Act and Irish Act both refer to behaviour causing the target to fear that violence will be used against them, or causing serious alarm or distress which has a substantial adverse effect on their usual day-to-day activities.
11 Follows Section 10(2) of the Scottish Act, except for the addition of the reference to companion animals (ie, cats and dogs) and other domesticated animals (regardless of whose animal they are).
12 A specific reference to financial control has been included in the Bill as a signal to the community that this behaviour is considered coercive control.
13 Similar to Section 3 of the Scottish Act.
14 Sections 14A(6) and (7) are similar to Section 7 of the Scottish Act.
15 Although not having retroactive effect, the Bill will allow instances of behaviour occurring prior to implementation to be considered within a course of behaviour where at least one instance of that behaviour occurs after implementation.
16 Similar to Section 10 of the Scottish Act.
17 This review clause is consistent with the Victim Rights Support Act 2013 (NSW).
18 Follows the approach of the Scottish Act (Schedule 1, new section 234AZA of 1995 Act).
19 Based primarily on the approach taken in Schedule 1 to the Scottish Act, tailored to existing NSW laws.