‘The difference between life and death’: Government moves on coercive control

NSW is on track to become the first Australian state or territory to outlaw coercive control, with Attorney General Mark Speakman pushing for the swift passage of new reforms through Parliament this week.

Following two and a half years of extensive consultation, a parliamentary inquiry and 200 submissions, the Government released draft legislation in July 2022, which Speakman then introduced to the Legislative Assembly on Wednesday – hoping to push it through in the remaining five sitting weeks of the year.

Coercive control is a form of domestic abuse involving repeated abusive behaviours that deny victim-survivors their autonomy and independence. Under the new law, behaviour such as controlling an intimate partner’s finances, isolating them from their family, or monitoring their movements could amount to a criminal offence attracting up to seven years in prison.

“Coercive control is a proven red flag for domestic violence homicide. It is no exaggeration to say this bill could literally mean the difference between life and death,” Speakman said.

“This offence is unlike any other coercive control offence in the world. We have learnt from overseas jurisdictions’ experiences and built a bespoke offence that best reflects the diverse nature of our society in NSW, in terms of Aboriginal communities and CALD (culturally and linguistically diverse) communities.”

The proposed legislation consists of five elements for proving the stand-alone offence of coercive control beyond reasonable doubt, including that the conduct is continuous and directed at a current or former intimate partner.

The reforms are backed by $5.6 million of initial funding, which includes $0.7 million announced in the 2022-23 NSW Budget.

“We know that this law is only as strong as its implementation. That’s why we are announcing a further $4.9 million to support coercive control training for police, funding for multiple awareness campaigns and educational resources,” Treasurer Matt Kean said.

However, the move has been criticised by domestic violence advocates and Indigenous legal services, who have said that the legislation could enable perpetrators of violence to find loopholes.

Over 220 domestic and family violence workers and advocates from around NSW, including Rosie Batty, Jess Hill and Yvonne Weldon, are calling for a second round of consultation, including greater discussion with victim-survivors, after signing an open letter that outlined dangerous flaws in the current proposed legislation.

These flaws include the lack of a singular, concise definition of coercive control, the omission of family and other violence, and the absence of an independent coercive control implementation taskforce.

Aboriginal women’s legal service Wirringa Baiya said the proposed changes could have “unintended consequences” for its clients. “Sadly, the criminal justice does not serve Aboriginal women well, despite many improvements in policing over the years. We caution that any legislative reform should not come before other necessary structural changes to police investigations and the criminal justice system response, as well as significant community education and resourcing,”  read its submission to the discussion paper in 2020.

NSW Bar Association President Gabrielle Bashir said the reforms will increase the ability of the criminal justice system to respond to patterns of behaviour that are not currently captured adequately by the law.

“Setting the bar at intention rather than a lower mental state will limit the spectre of the offence being used as a weapon against the very people that it is designed to protect,” Bashir said.

“This is an important safeguard to reduce the offence being misapplied to already marginalised communities and persons in intimate relationships who are in need of the protection of the law.”

The Government said it has also factored into the bill important safeguards to minimise the risk of impact on Aboriginal communities, including limiting the scope to intimate partner settings only.

“While coercive control can exist outside intimate partner relationships, we believe that the risks of including a broader range of relationships would outweigh the potential benefits,” Legal Aid NSW CEO Monique Hitter said.

Once passed, there will be at least a further 14 months, and up to 19 months, before the laws commence, to allow time for training, resourcing, education and community awareness raising, guided by a multi-disciplinary taskforce.