NSW introduces new offence of ‘Abusive behaviour towards current or former intimate partners’
On 1 July 2024, a new offence of ‘abusive behaviour towards current or former intimate partners’ became law in NSW under section 54D of the Crimes Act 1900.
The offence only applies to persons over the age of 18 years at the time of the offending and in relation to persons with whom they are or were intimate partners (including married and de facto partners or persons with whom they are or were in an intimate personal relationship even if it was not a sexual relationship). It carries a maximum term of imprisonment of 7 years (capped at 2 years if a person is sentenced in the Local Court).
Under section 54 D of the Crimes Act 1900, a person commits an offence if they engage in a course of conduct towards their intimate partner that consists of abusive behaviour and they intend the course of conduct to coerce or control their intimate partner in circumstances where a reasonable person would consider the course of conduct would be likely to:
- cause their intimate partner to fear that violence will be used against them or
- have a serious adverse impact on their intimate partner’s capacity to engage in some or all of their ordinary day-to-day activities.
‘Abusive behaviour’ is defined in section 54F of the Crimes Act 1900 as behaviour that consists of or involves—
- violence or threats against, or intimidation of, a person or
- coercion or control of the person against whom the behaviour is directed.
Section 54F goes on to explain some examples of behaviour that may constitute abusive behaviour, including:
- Causing harm to a child, the victim or another adult if the victim person fails to comply with demands made by the perpetrator.
- Behaviour that is economically or financially abusive, such as withholding financial support from the victim or their dependants in circumstances where the victim is reliant on the perpetrator to meet their living expenses, or preventing, or unreasonably restricting or regulating, the victim having or finding a job or having control or access to their own income and financial assets;
- Shaming, degrading or humiliating the victim;
- Harassing or monitoring the victim’s communications or movements;
- Destroying or damaging property;
- Isolating the victim by preventing them from having connections with their family and friends or taking part in their cultural activities;
- Causing injury or death to an animal or using an animal to threaten the victim;
- Depriving or restricting the victim’s liberty or unreasonably controlling or regulating their day-to-day activities.
A ‘course of conduct’ is defined in section 54G Crimes Act 1900 to mean engaging in behaviour (either in NSW or elsewhere)
- either repeatedly or continuously, or
- both repeatedly and continuously.
But not necessarily
- as an unbroken series of incidents, or
- in immediate succession.
Under section 54E of the Crimes Act 1900, it is a defence if the course of conduct was reasonable in all the circumstances.
Overseas experience of similar ‘coercive control’ offences indicates that these offences can be difficult to prove beyond a reasonable doubt. In the current political environment, the NSW Police attitude of charging people on the word of a complainant and ‘letting the court sort it out’ is likely to prevail. The recent changes to the Bail Act in NSW, which designate section 54D as a ‘show cause’ offence, will make it difficult for people charged with this offence to be granted bail.
The potential misuse of this offence where family law proceedings are pending, combined with the prevailing attitude of NSW Police and the bail implications, presents a real risk that people accused of abusive behaviour towards current or former intimate partners will be held in custody before ultimately being found not guilty.
