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The New South Wales government is expected to criminalise coercive control following a parliamentary inquiry.

Supporters of the move have suggested that it will improve the safety and wellbeing of domestic violence complainants across NSW.

However, questions remain about whether the laws will be enforced.

There is also widespread concern amongst the community that the laws will be disproportionately applied against indigenous communities, those from non-English speaking backgrounds and the mentally ill.

What is Coercive Control?

Coercive control is a pattern of behaviours used by a person to control their partner and create an uneven power dynamic.

It often involves manipulation and intimidation to make a victim scared, isolated, and dependent on the abuser.

It is a type of domestic violence offence that can be more difficult to identify than some other types of abuse.

Examples of Coercive Control

Examples of coercive control include:

• Isolation from friends and family;
• Monitoring activity;
• Restricting autonomy;
• Controlling appearance;
• Verbal abuse;
• Financial Control;
• Jealousy and possessiveness;
• Threats and intimidation.

Arguments for Criminalising Coercive Control

The NSW attorney general and domestic violence prevention minister, Mark Speakman, indicated that the government would support 17 of the parliamentary inquiry’s 23 recommendations.

The remaining six recommendations have not been rejected outright, but rather were “noted as further consideration continues”.

The most significant of the recommendations is a new, stand-alone offence for coercive control. There are also to be amendments to sections under the Crimes (Domestic and Personal Violence) Act 2007.

“No person deserves to live in fear, and it is part of our responsibilities in government to uphold the safety and human dignity of all of our citizens,” Mr Speakman said.

The Domestic Violence NSW chief executive, Delia Donovan, said making coercive control an offence “presents a significant opportunity to improve the safety and wellbeing of victim-survivors across NSW”.

Increased Community Awareness

Community awareness of coercive control has increased in recent years. It is now more widely recognised as a form of abuse and soon to be legislated.

“It’s pretty clear the criminal law has this gap,” Mr Speakman said. “When I became the minister two-and-a-half years ago I had never heard of coercive control and I suspect many of my colleagues hadn’t either.”

The NSW Coroner through its domestic violence death review team noted that a number of its cases were not preceded by an evident history of physical violence.

However, they found offenders used, “extreme manipulation and controlling behaviours to attempt to control and limit their victim’s freedom and rights”.

This included isolating victims from friends and family, monitoring their communications, controlling their finances or covertly tracking them using spyware or other settings on their mobile phone.

Will it be Enforceable?

Tasmania has criminalised coercive control since 2004. There are a number of pieces of legislation which create offences for this type of behaviour.

However, a 2017 report by Deakin University researchers published by the University of Tasmania law review found coercive control offences have “only rarely been prosecuted”.

The Queensland government will also make coercive control an offence, following the death of Hannah Clarke and her children.

In February 2020, Hannah and her three children Aaliyah, Laianah and Trey, were killed. Mrs Clarke’s estranged husband Rowan Baxter doused them in petrol and set them alight inside their car. Mr Baxter also died shortly after from self-inflicted wounds.

Ms Clarke’s family claim she was the victim of coercive control for years before she was killed.

Similar coercive control laws have been passed in England and Wales in 2015, and Scotland in 2019. Intensive training was required for front line emergency services workers to help them better recognise coercive control.

The NSW government aims to introduce a bill to Parliament in the second half of next year, with laws potentially enacted by the end of 2023.

Education About Coercive Control

The government will also respond by reviewing school programs, while comprehensive training will also be introduced across government systems, communities and public campaigns.

In New South Wales, the law already recognises that domestic violence extends beyond physical violence. For example, the offence of stalking or intimidation can involve patterns of abuse.

However, the parliamentary inquiry into coercive control showed there are still gaps and more can be done to protect victims. The government believes more can be done.

Experienced domestic violence lawyers have suggested that making coercive control an offence will create broader social awareness of it, particularly in relation to victims who may already be suffering coercive control but don’t realise it.

Concerns Raised

However, despite the push to make coercive control a criminal offence having noble intentions, there have been concerns raised about the practical effect it will have.

“Any legislative reform must be approached with great care and caution to ensure it does not unintentionally put in further danger those in our community we are seeking to help,” the government’s response to the inquiry said.

Criminal lawyers in Sydney have suggested that the reforms could lead to over-criminalisation of marginalised groups such as indigenous Australians, those from a non-English speaking background and those suffering mental health issues.

There is also concern of the laws being used to make vexatious complaints against real victim-survivors.

Finally, from a legal perspective, there will be significant challenges in proving a course of behaviour.  Mr Speakman said the government recognised all valid concerns, noting that “generally speaking, criminal law is incident-based rather than behaviour based”.

“That’s why a period of consultation on the form of the draft [legislation] is so important. More important than that is that once legislation is enacted, there is a period in which police and frontline services can be trained.”

Domestic Violence NSW chief executive Delia Donovan welcomed the response. However, she acknowledged that consultation with Aboriginal and Torres Strait Islander and culturally and linguistically diverse services would be critical to reforms.