New Definition of Domestic Abuse in NSW

NSW has introduced a new definition of “domestic abuse” which will articulate more clearly the types of behaviours that may constitute domestic abuse, including coercive and controlling behaviour. A new coercive control offence will come into force separately on 1 July 2024.

The new definition is also designed to play an important educative function in enhancing community understanding of what domestic abuse is and how differently it can manifest.

NSW had hitherto been an outlier among Australian states because it did not have a statutory definition of domestic abuse. It is hoped the new definition will remove uncertainty and the risk of confusion as to what constitutes domestic abuse under the law.

What is domestic abuse?

The new definition of “domestic abuse” is contained in section 6A of the Crimes (Domestic and Personal Violence) Act. It means any of the following behaviours directed by one person against another person with whom they have a domestic relationship:

(a)  violent or threatening behaviour,

(b)  behaviour that coerces or controls the second person,

(c)  behaviour that causes the second person to fear for the person’s safety or wellbeing or the safety and wellbeing of others.

Domestic abuse can be either a single act or it can take the form of a course of conduct. Exposing a child to domestic abuse also constitutes domestic abuse. Evidence shows that when children are living in a household of domestic abuse their health and development are adversely affected.

Section 6A(2) sets out a non-exhaustive list of behaviours that constitute domestic abuse, including behaviour that:

(a)  is physically abusive or violent,

(b)  is sexually abusive, coercive or violent,

(c)  is economically or financially abusive,

(d)  is verbally abusive,

(e)  shames, degrades or humiliates,

(f)  intimidates,

(g)  is stalking, or 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,

(h)  damages or destroys property,

(i)  causes death or injury to an animal, or otherwise makes use of an animal to threaten a person,

(j) prevents the second person from doing any of the following or otherwise isolates the person—

(i)  making or keeping connections with the person’s family, friends or culture,

(ii)  participating in cultural or spiritual ceremonies or practice,

(iii)  expressing the person’s cultural identity,

(k)  deprives a person of liberty.

Changes to the meaning of “domestic violence offence”

The definition of “domestic abuse” has been incorporated into the definition of “domestic violence offence” contained in section 11 of the Crimes (Domestic and Personal Violence) Act.

Section 11(1)(c) now states that a domestic violence offence is “an offence, other than a personal violence offence, in which the conduct that constitutes the offence is domestic abuse.”

How does the definition of domestic abuse interact with other laws?

The inclusion of domestic abuse within the broader definition of “domestic violence offence” is significant as the latter is a trigger for a range of laws and legislative provisions, including:

  • Apprehended Domestic Violence Orders (ADVOs) – An ADVO may be made where a person fears on reasonable grounds the other person will commit a “domestic violence offence” against them,
  • When determining whether a person’s conduct amounts to intimidation or stalking, a court may have regard to any pattern of violence in the person’s behaviour, especially violence constituting a “domestic violence offence”,
  • Police powers to investigate domestic violence offences,
  • Warnings by a Judge to the jury about delays in complaints about domestic violence offences,
  • Sentencing presumptions that a person convicted of a domestic violence offence must be sentenced to full time detention or a supervised order pursuant to section 4A of the Crimes (Sentencing Procedure) Act 1999, and
  • The requirement to suspend a person’s firearms licence when they are charged with a domestic violence offence under section 22 of the Firearms Act 1996.

Baker Love Lawyers has experience advising and assisting clients with respect to domestic violence matters. If you require advice and assistance please contact us on 02 4944 3322.

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