Legislative Council Fifty-Fifth Parliament, First Session (55-1) 55 1 Parliament of South Australia Legislative Council published Bills Bills Criminal Law Consolidation (Coercive Control) Amendment Bill Criminal Law Consolidation (Coercive Control) Amendment Bill Criminal Law Consolidation (Coercive Control) Amendment Bill Second Reading Second Reading The Hon. K.J. MAHER Legislative Council Minister for Aboriginal Affairs Attorney-General Minister for Industrial Relations and Public Sector Special Minister of State The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (15:18): I move: That this bill be now read a second time. I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading them. Leave granted. Mr President, it is a great privilege to introduce the Criminal Law Consolidation (Coercive Control) Amendment Bill 2024. This legislation represents years of work and significant consultation undertaken by the Government to develop this groundbreaking reform and I am honoured to introduce it to this place today. Coercive control is an abusive, systematic and deliberate pattern of behaviour undertaken to impose the perpetrator's will on another person. When coercive control is exercised, fear and intimidation is used to override another person's ability to act in accordance with their own wishes and best interests. Perpetrators hurt, humiliate, demean, manipulate, intimidate, isolate, and terrify to achieve control of their victims. Many different kinds of abusive behaviours may be threaded together into a destructive web designed to entrap a person. For too long, the criminal justice system has only been able to address individual incidents of or threats of physical violence. A serious assault or homicide might be preceded by a decade of abusive control. However, this control is only considered 'background' to the crime, and not a crime in and of itself. For too long, because of the criminal law's focus on physical abuse, police have been severely limited in how they can help women subject to coercive control if physical violence is not involved. Through the introduction of this Bill the Government intends to create a fundamental shift in the criminal justice response to domestic abuse. Coercive control will be recognised and treated as a serious crime. This Bill will create a new offence in the Criminal Law Consolidation Act 1935 of the coercive control of a person with whom the defendant is, or has been, in an intimate relationship. This offence will have a maximum penalty of seven years imprisonment. The elements of the offence of coercive control will be that: 1.	The defendant engages in a course of conduct consisting of behaviour that has, or a reasonable person would consider is likely to have, a controlling impact on another person; and 2.	The defendant intends that course of conduct to have a controlling impact; and 3.	The defendant is or was in a 'relationship' with the other person, meaning they are or previously were a married or engaged couple, domestic partners, or in an intimate couple relationship; and 4.	A reasonable person would consider that the course of conduct would be likely to cause the other person physical or psychological harm. The central element of the new offence is a course of conduct that has or is likely to have a 'controlling impact' on the person subject to it. A 'controlling impact' means restricting a person's freedom—their freedom of movement, action, bodily autonomy, or their freedom to engage in the social, political, religious, cultural, educational, or economic activities of their choosing. The person subject to the behaviour might be forbidden to work or to wear certain types of clothing. Their personal hygiene or food intake might be regulated. They may be prevented from catching up with colleagues, isolated from their family and friends, forbidden to speak with anyone of a different gender. They may be denied the choice as to what to do with their own money or their own body. In coercive control, restriction may be achieved through various means, both physical and psychological. To make this clear, the Bill provides that a person may be considered to 'restrict' another person by either: (a)	 Physical restriction; (b)	 Verbal or psychological restriction; (c)	 Removing the means by which a person is able to do something; (d)	 Deception; or (e)	 Any other behaviour that, directly or indirectly, significantly impairs the other person's ability to do something. Examples in the Bill support this definition by illustrating the diverse ways in which a person might be restricted by their partner's behaviour. This broad definition of 'restrict', and the list of examples, reflects what we heard from brave survivors during the consultation process about the breadth of tactics used in coercive, controlling relationships. We often think of being 'restricted' as being physically unable to do something; this can be a tactic of coercive control. However, what we heard from the sector and from survivors, is that the restriction is primarily psychological, achieved and maintained through the perpetrator creating an atmosphere of fear within the relationship. Victims of coercive control live, day in, day out, with a relentless fear that serious consequences will occur if they do not conform to the perpetrator's wishes – consequences that go far beyond normal couple conflict. They may not even know what might specifically happen as a consequence each time, but they know from painful experience that nothing good comes from disobeying the perpetrator. Maybe they will be shaken or screamed at. Maybe they will be humiliated in front of friends or coworkers. Maybe aggression will be directed against their children or a pet. They might be stalked or monitored to ensure they are complying. Physical violence or threats of physical violence may be a part of the control, but this is not a necessary element of this offence. Other kinds of abuse may have an equally controlling impact. No method of control should be considered inherently less serious or less restrictive than another. The ultimate test is simply whether the person was, or reasonably could have been, 'restricted' in the circumstances. In other words, was the person's free will significantly impaired when deciding whether and how to engage in a particular activity? Judges and juries considering a charge of coercive control will need to consider how the alleged perpetrator's behaviours impacted the options open to the person being controlled and ask 'fundamentally, were the choices really theirs, or was their partner pulling the strings'? Perhaps every time a person talks to a friend of a different gender, they will be subject to degrading verbal abuse or relentless harassment about whether they are having an affair, until – exhausted and defeated – they simply submit and stop trying to have friends of a different gender. No reasonable person would think that they have genuinely chosen this for themselves. A coercive control charge is proposed to cover, not just one incident of controlling behaviour, but an entire 'course of conduct' that has a controlling impact. 'Course of conduct' is not defined in the Bill as it is not the intention to rigidly restrict the offence by requiring a minimum number of incidents or incidents occurring over a specific length of time. Each case should turn on its own facts. However, I place on record commentary on what the requirement for a 'course of conduct' is intended to mean. In the context of the coercive control offence, a 'course of conduct' primarily envisages conduct occurring on multiple occasions, with a sense of continuity and purpose between them – with the purpose being control. It does not require the relevant conduct to occur every day or for the controlling impact to be the same on each occasion but a 'course of conduct' would require more than a few genuinely isolated incidents. That being said, a break in time between overt conduct does not necessarily make incidents 'isolated'. It is important to recognise the long-lasting effects of the fear the perpetrator creates. The perpetrator's pattern of behaviour instils serious fear that something could happen if the victim displeases the perpetrator, even in periods that to an outsider might look relatively 'peaceful'. The Bill provides that whether a course of conduct has or could have a controlling impact must be determined by considering the totality of behaviours. A judge or jury should not consider the likely impact and intent of each individual behaviour in isolation, but instead must consider the impact and intention of the behaviours as a whole and in combination with each other. This acknowledges that the controlling impact of behaviours can be cumulative. Repeated 'small' abuses can wear down a person's self-esteem and capacity to resist, like dripping water slowly carving away rock. Behaviour that would not be controlling as a one-off incident may be very controlling when repeated over and over again. Similarly, it need not be proved that the defendant intended to have a directly controlling impact by each individual behaviour making up the course of conduct. The judge or jury must consider whether the course of conduct overall was motivated by an intent to control. The Bill provides that it must be shown that the controlling behaviour would likely cause physical or psychological harm including serious distress, anxiety, or fear. This provides a threshold of seriousness for the offence, which will act as a safeguard against perpetrator misidentification. The Bill provides a defence to coercive control, which applies if the course of conduct was reasonable in all of the circumstances. This will account for exceptional cases in which it would be reasonable to restrict a spouse or partner. It may be necessary for a person to bar another person from their home for either person's protection. It may be necessary to restrict contact with children if they may harm them. It may be necessary to restrict access to household funds if there is a risk they might excessively spend money on alcohol, drugs or gambling due to addiction. The onus of proving reasonableness is on the defendant. Once it has been proved by the prosecution that the defendant controlled their partner in a way that would likely cause physical or psychological harm, it is incumbent on the defendant to justify this course of conduct. Mr Speaker, the proposed offence applies to any person in an intimate couple relationship (regardless of sex or gender identity). This includes married or engaged couples, domestic partners, or other intimate couple relationships, former or current. We acknowledge that coercive control occurs in other kinds of relationships—between siblings, carers, by children towards parents or by parents towards children, or even in non-family contexts. However, this Bill focuses on intimate partner relationships in acknowledgement of the well-known and deeply concerning link between coercive control and intimate partner homicide. The Bill will apply only to coercive control in intimate partner relationships to focus resources on this extremely high-risk area. The Bill contains provisions to guide a court in sentencing a defendant for this offence. As coercive control is a course of conduct offence, a criminal trial for the offence will likely involve a significant body of evidence about various ways in which the person was allegedly restricted. In a jury trial, the jury will find the defendant guilty or not guilty, depending on whether they found beyond reasonable doubt that the person was restricted in at least one way that could cause physical or psychological harm. However, the jury is not required to determine, nor enumerate, all the various kinds of restriction that they found proved beyond a reasonable doubt. The Bill provides that the sentencing judge may sentence having regard to the general nature or character of the behaviour that they determine to have been proved beyond reasonable doubt. This has been modelled on and intended to operate similarly to the sentencing provisions for the existing offence of sexual abuse of a child in section 50 of the Criminal Law Consolidation Act 1935. The Bill also contains a sentencing principle to recognise children affected by coercive control. In consultation we heard that coercive control against an intimate partner significantly affects the physical and mental health of children and that they should be considered victims in their own right, rather than mere witnesses. To acknowledge this, the Bill provides that, when sentencing a person for coercive control, the court must take into account the effect that the behaviour had on a child who witnessed or was otherwise affected by it. This offence has been designed to operate alongside existing offences that may be charged in relation to abusive intimate partner relationships. The Bill contains provisions allowing the same conduct to count as evidence of a standalone offence as well as be part of the course of conduct constituting coercive control. A person may be convicted of both offences, in either the same or separate proceedings, despite the overlap of conduct. This acknowledges that coercive control tactics used to frighten and intimidate the victim may also constitute a range of standalone offences that should be punished in their own right – such as animal abuse, reckless driving, threats to harm a child. However, if a course of conduct constituting coercive control includes conduct that is the subject of other convictions, the court must take this into account in sentencing, to ensure the overall penalty for both convictions is proportionate to the totality of the conduct and the defendant is not punished twice for the same conduct. The Bill mandates that a review of the offence must take place after the third and before the fourth anniversary of commencement. This will provide a valuable opportunity to review the first few years of operation to ensure that the offence is meeting the needs and expectations of the justice system, the wider community, and – most importantly – victim-survivors of domestic abuse. Mr President, I offer deep appreciation to all who have invaluably contributed to developing this Bill, most notably the tireless work and advocacy of the Minister for Women and the Prevention of Domestic, Family and Sexual Violence. I am also grateful to the Standing Council of Attorneys-General for the 'National Principles to Address Coercive Control in Family and Domestic Violence', which have been invaluable in developing this bill. I commend the Bill to members and seek leave to insert the Explanation of Clauses into Hansard without my reading it. Explanation of Clauses Explanation of Clauses Part 1—Preliminary 1—Short title 2—Commencement These clauses are formal. Part 2—Amendment of Criminal Law Consolidation Act 1935 3—Amendment of section 5AA—Aggravated offences This clause adds a further circumstance in which 2 people will be taken to be in a relationship for the purposes of the aggravating circumstance set out in section 5AA(1)(g) of the principal Act. 4—Amendment of section 20A—Choking, suffocation or strangulation in a domestic setting This clause adds a further circumstance in which 2 people will be taken to be in a relationship for the purposes of section 20A of the principal Act. 5—Insertion of Part 3 Division 7AAB New Part 3 Division 7AAB is inserted: Division 7AAB—Coercive control 20B—Interpretation This clause sets out definitions for the purposes of the Division. 20C—Coercive control This clause makes it a criminal offence to coercively control another person. In order to be found guilty of the offence, a person must engage in a course of conduct that consists of behaviour that has, or that a reasonable person would consider is likely to have, a controlling impact on another person with whom they are, or were, in a relationship. The person also must have intended by the course of conduct to have a controlling impact on the other person, and the course of conduct must be such that a reasonable person would consider it likely to cause the other person physical injury or psychological harm. It is a defence to a charge of coercive control for the defendant to prove that the course of conduct was reasonable in the circumstances. This clause allows a defendant to be charged with, and convicted and sentenced for, an offence of coercive control and a different offence if behaviour that makes up part of the course of conduct alleged in proceedings for the coercive control offence also constitutes the elements of the different offence. This clause also sets out a number of matters relating to proceedings for an offence of coercive control. 20D—Review of Division This clause requires a review of the Division to be undertaken after 3 but before 4 years after the commencement of the Division. Schedule 1—Related amendments Part 1—Amendment of Evidence Act 1929 1—Amendment of section 4—Interpretation This clause makes the offence of coercive control a serious offence against the person for the purposes of the principal Act. Part 2—Amendment of Intervention Orders (Prevention of Abuse) Act 2009 2—Amendment of section 8—Meaning of abuse—domestic and non-domestic This clause adds a further circumstance in which 2 people will be in a relationship in respect of the definition of domestic abuse for the purposes of the principal Act. Debate adjourned on motion of Hon. D.G.E. Hood.