Crimes Legislation Amendment (Coercive Control) Bill 2022
(Second Reading Debate, 19 October 2022, Legislative Assembly, NSW Parliament)
Coercive control covers a pattern of behaviours designed to exert power, domination and manipulation over another person, to crush their confidence and to incite fear in them. It can involve controlling their access to finances, monitoring their movements and isolating them from friends and family. It can occur slowly and build up over time and is often a precursor to physical violence. I support a new offence for coercive control and I will support the Crimes Legislation Amendment (Coercive Control) Bill. It will punish the very sinister, non-physical abuse that occurs in relationships and provide an opportunity to intervene before it escalates into physical violence, or even worse, homicide. Notwithstanding, this is a complex area of law that has challenges. There is a risk that any new offence could see victims criminalised.
In the family and domestic violence space, there are well-known problems around mis-identification of victims and aggressors. The examples that we regularly hear are of victims being identified as perpetrators because they are blocking an abusive partner's access to children or money. In same-sex relationships it can be especially difficult to work out who is the perpetrator and who is the aggressor and mis-identification is a problem. Aboriginal people—who we know are overpoliced—are vulnerable to mis-identification because laws are disproportionately used against them.
Members of the House are being contacted by a range of domestic violence organisations, specialists and legal practitioners concerned that the new criminal offence in the bill could criminalise victims and survivors. I thank the Attorney General for responding to these concerns. He has emphasised that the new offence only applies where there is an intention to coerce or control another person, arguing that this would not capture a person who, for example, was trying to protect their children from an abusive partner or their family money from being squandered. But the domestic violence sector stresses that if victims get thrown into the criminal justice system, even if they are not convicted, they will lose faith in the people who can protect them, such as police, and they will be more scared to leave their abusive relationship. They are worried about the broad implications of an offence.
Training of our enforcement officers, legal practitioners and the judiciary will be key to limiting the offence to abusive partners while protecting victims and survivors. Some working at the coalface of domestic and family violence want us to slow this process down to provide more time to do that training and to enable the sector to undertake further assessment of the detail through an independent oversight task force similar to the Queensland Women's Safety and Justice Taskforce. I will move an amendment at a later stage to set up a legislated task force to oversee implementation, to bring forward the review and to provide two follow-up reviews. The changes will ensure there is oversight of every aspect of implementation, including training stakeholders, assessing details and resourcing and preparing the sector to support victims.
Regarding specific concerns about the detail of the bill, I accept that removing the "mental element" and extending the offence to instances where a perpetrator was reckless could result in overreach and a greater capacity for victim mis-identification and believe such a change would require further assessment.
I am satisfied that the definition of "intimate partner" will capture all intimate relationships, including where an aggressor has multiple partners whom they abuse or where two people together abuse another person—for example, in a throuple situation. However, I acknowledge concerns that restricting the offence to intimate partners could be too limiting. Coercive control and abuse are not exclusive to intimate relationships and can occur in family relationships, in the sex industry, and even in pastoral care and other religious settings. LGBTIQ+ people are often subject to abuse outside intimate relationships, including in their family and in church settings. The organisation Cult Information and Family Support, whose members are victims and survivors of cults, says that damaging coercive control is common in a cult environment.
The statutory review will consider broadening the scope to other relationships. I believe that is appropriate, given the concerns about the risks of misidentification. I share the concern of ACON that the reasonable person test may not function appropriately for LGBTIQ+ people. Coercive control for LGBTIQ+ communities can be unique and it is not always understood by cisgender heterosexual people. Examples of unique coercive control behaviours can include threatening to out a person or purposely misgendering a trans partner. If the reasonable person test is from the cisgender perspective, those impacts may not be recognised sufficiently. The task force will need to look at training and guidance to ensure that the reasonable person test incorporates the experiences of LGBTIQ+ people. Threatening to out a person's sexuality or gender identity, that they have HIV, that they work in the sex industry or that they have overstayed their visa is a form of coercive control unique to vulnerable communities. I ask the Attorney General to address in his reply how the definitions will cover those forms of controlling behaviour.
We have shocking rates of partner and former partner abuse in this country, with high rates of murder. The new offence will provide an opportunity to intervene before abuse escalates to violence and also reflects what the community wants. I commend the Attorney General and Labor and crossbench members for their work in this space. We still need to address the cultural issues that lead to domestic and family violence and provide more support for people trying to leave, including through safe housing. The domestic and family violence sector will need sufficient funding to ensure that it can help victims and survivors navigate the changes in the bill. I ask the Attorney General to respond to their funding needs in his reply. I hope my amendments will help address some of the concerns raised by the sector. I thank the Attorney General and his staff for their work with me to get to a place where we can reach agreement on further provisions in the bill. I will closely assess any changes made in the Legislative Council. I commend the bill to the House.
Consideration in detail requested by Mr Alex Greenwich.
Consideration in Detail
The DEPUTY SPEAKER: By leave: I will deal with the bill in groups of clauses and schedules. The question is that clauses 1 and 2, and schedules 1 to 4 be agreed to.
Mr ALEX GREENWICH (Sydney): By leave: I move amendments Nos 1 to 5 on sheet c2022-170F:
No. 1 Commencement
Page 2, clause 2, lines 5–8. Omit all words on the lines. Insert instead—
(1) The provisions of this Act, other than Schedule 1, 2 and , 3 and 4, commence on the earlier of the following—
(a) 1 February 2024,
(b) a day or days appointed by proclamation.
(2) Schedule 1, to the extent it inserts section 54HA, commences on the earlier of the following—
(a) 12 December 2022,
(b) a day appointed by proclamation.
(3) Schedule 1 (other than Schedule 1 to the extent it inserts section 54HA), 2 and , 3 and 4 commence on the earlier of the following—
(a) 1 July 2024,
(b) the day or days, not earlier than 1 February 2024, appointed by proclamation.
No. 2 Coercive Control Implementation and Evaluation Taskforce
Page 5, Schedule 1. Insert after line 37—
54HA Coercive Control Implementation and Evaluation Taskforce
(1) The Minister must establish a Coercive Control Implementation and Evaluation Taskforce.
(2) The taskforce is to include the following members appointed by the Minister—
(a) the Secretary of the department in which this Act is administered, who is to be the chairperson of the taskforce,
(b) a representative of the NSW Police Force,
(c) the chair of the Domestic and Family Violence and Sexual Assault Council,
(d) a member from the domestic and family violence sector with substantial expertise and experience in domestic and family violence service delivery.
(3) The main purposes of the taskforce are as follows—
(a) to consult with stakeholders, including reference groups established under this section, about the offence under section 54D (the coercive control offence) and related matters,
(b) to provide advice about, and monitor, training, education and resourcing in relation to the coercive control offence,
(c) to provide advice about the commencement dates of, and interaction between, the definition of domestic abuse in the Crimes (Domestic and Personal Violence) Act 2007, section 6A and the coercive control offence,
(d) to evaluate implementation of the coercive control offence and resourcing in relation to the coercive control offence,
(e) to monitor the operation of this Division, including—
(i) the practical application of defences to the coercive control offence, and
(ii) resourcing in relation to the operation of the Division,
(f) to provide advice to the Minister about other matters related to a matter in paragraph (a)‑(e) or the coercive control offence.
(4) The chairperson of the taskforce must convene the first meeting of the taskforce within 1 month after the commencement of this section.
(5) The taskforce must establish reference groups to consider, and provide advice and recommendations to the taskforce about any of the following matters—
(a) the impact of this Division on specific communities,
Examples — Aboriginal persons, the LGBTIQA+ community
(b) particular elements of the Division.
(6) A reference group must consist of members who have expertise in, or legal knowledge of, the subject matter for which the reference group is established.
Examples of sectors, groups and organisations from which members of reference groups might be drawn — the domestic and family violence sector, the legal profession, the Judicial Commission of NSW, Aboriginal organisations and groups, the culturally and linguistically diverse sector, LGBTIQA+ groups, the disability sector, youth and children's groups, victims and survivors of sexual or domestic and family violence and the families of victims and survivors
(7) In carrying out its purposes, the taskforce must consult with any reference group that is relevant to the particular purpose.
(8) The taskforce must give the Minister a report in relation to its main purposes—
(a) at least once in each 6 months during the period between the commencement of this provision and the commencement of the coercive control offence, and
(b) at least every 12 months after the commencement of the coercive control offence.
(9) The Minister must ensure a report under subsection (8) is tabled in each House of Parliament within 21 days after receiving it.
(10) The taskforce ceases to operate, and this section is repealed, on the day on which, under section 54I(4)(c), the report about the third review about this Division is tabled in the Legislative Assembly.
No. 3 Review of Division
Page 5, Schedule 1, proposed section 54I(2), line 43. Omit "the review". Insert instead "a review under this section".
No. 4 Review of Division
Page 6, Schedule 1, proposed section 54I(3), lines 8 and 9. Omit all words on the lines. Insert instead—
(3) A review under this section is to be undertaken—
(a) for the first review—as soon as possible after the period of 2 years from the commencement of this Division, and
(b) for the second and third reviews—as soon as possible after the period of 2 years from the last review under this section.
No. 5 Review of Division
Page 6, Schedule 1, proposed section 54I(4), lines 10 and 11. Omit all words on the lines. Insert instead—
(4) A report on the outcome of a review under this section is to be tabled in each House of Parliament within—
(a) for a report about the first review—within 3 years after the commencement of this Division, and
(b) for a report about the second review—within 3 years after the report about the first review was required to be tabled under paragraph (a), and
(c) for a report about the third review—within 3 years after the report about the second review was required to be tabled under paragraph (b).
At the outset, I thank the Attorney General for his work with me to land on some very workable amendments, which I believe strengthen the bill, and also the Opposition and the crossbench for their support. The Crimes Legislation Amendment (Coercive Control) Bill will criminalise the non-physical abusive behaviours used by perpetrators to control and intimidate someone with whom they are in a relationship. It will allow intervention by the criminal justice system before those non-physical abusive behaviours turn into physical violence. But the complexities of legislating in this space, which include the potential for misidentification of victims as perpetrators, require us to approach this new offence with caution. Those at the coalface of domestic and family violence want us to slow down to provide time for training and detailed assessment of the legislation. The criminal offence will not start until, at the earliest, 1 February 2024, and potentially not until 1 July 2024. This gives us at least a year to train stakeholders and further review the detail against past cases. My amendments will ensure that this work is done and that the sector and law enforcement are prepared.
The amendments will set up the Coercive Control Implementation and Evaluation Taskforce to provide oversight. It will be chaired by the secretary of Communities and Justice and include representation of the NSW Police Force, the chair of the Domestic and Family Violence and Sexual Assault Council, and the domestic and family violence sector. The task force will be set up by the end of this year and will monitor both the implementation and operations of the offence, from training police and the judiciary to resourcing the sector to help victims navigate the offence and assess any impacts. The bill requires the taskforce to create and consult with expert reference groups, like Aboriginal people or LGBTIQ+ people, on impacts on specific groups and on the details of the bill. The taskforce will provide regular reports to the Attorney General, which must be tabled in Parliament. The amendments also bring forward the statutory review of the bill so that it begins two years after commencement of the introduction of the offence rather than three years. Two further reviews within two years of the previous review will be mandated. These changes will provide more opportunity to uncover and address any problems.
Throughout the debate we have heard concerns raised by various stakeholders. We have also heard from the Government and the Attorney General their willingness to address those concerns. These amendments essentially bake-in continuous improvement to this legislation with transparent reporting to Parliament. I am committed to making sure that we get the offence of coercive control and the training and resourcing right. That is why I am moving these amendments. Should we need to deal with items in a future parliament, we know that there is unanimous support for action in this regard. Again, I thank the Government for its work with me on the amendments and I commend them to the House.