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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2024-08-29 Daily Xml
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Criminal Law Consolidation (Coercive Control) Amendment Bill

Introduction and First Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (12:02): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935 and to make related amendments to the Evidence Act 1929 and the Intervention Orders (Prevention of Abuse) Act 2009. Read a first time.

Second Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (12:03): I move:

That this bill be now read a second time.

It is with great honour that I rise today to introduce the Criminal Law Consolidation (Coercive Control) Amendment Bill 2024. This is legislation that Labor has worked on for five years and that I, along with many others, a number of whom are with us today, know that we have desperately needed for a very, very long time. In 99 per cent of domestic violence-related homicides, coercive control was a factor prior to that horrific final physical act.

Women experiencing coercive, controlling behaviour at the hands of an abusive partner or former partner find themselves isolated, scared, psychologically harmed, stripped of their self-worth, and restricted from making autonomous decisions about every aspect of their life, from day-to-day decisions about what to wear to life-changing decisions about their health, housing or finances.

I honour the precious women who we have lost, and those who mourn them. I hold them in my heart and in my mind as I speak today—women, including Hannah Clarke, and her three beautiful children. Hannah's story, and the integrity and bravery of her inspiring parents, Sue and Lloyd, in the face of horrific brutality are etched in our collective psyche.

What we know about the pattern of vile abuse that Hannah endured prior to her murder demands that we act, as do the voices and the experiences of those courageous survivors who, after experiencing the most disturbing instances of this terrible behaviour—behaviour designed to diminish, belittle, and strip away their agency—have shared their experiences with a clear focus on empowering others who traverse a similar journey. This bill is for them. It is for you. At its heart is our clear commitment to honour their experiences, to respond to their calls for change, to hold perpetrators to account, and to ensure that everyone in our community knows what coercive control is, and that our state utterly refuses to ever accept it.

Deeply embedded in this bill are their stories. Without fully identifying her, I share one of those stories. Five years ago I ran into Colonnades to quickly grab something from a chemist. A lovely woman called Ann recognised me from a connection many years ago, and as her local MP and long-term domestic violence prevention advocate. Ann did merchandising work in retail and, on seeing me, she really quickly grabbed me, approached, and rapidly advised that she had been really wanting to talk with me about what she was going through, but that it was really, really hard to do so because of just how restricted she was. Other than being allowed by her perpetrator to go to work, other conversations, catching up with friends, doing many of the things often taken for granted was just too hard.

The young woman at the counter said that she was so glad that we had connected because she had been so worried about Ann, and just did not know what to do. This remarkable woman and I very carefully organised to talk and to carefully connect her with services. We met after some organisation, and it was devastating to hear of her years and years and years of being put down, completely isolated from her loved ones, having her car tracked, no control of her finances, being relentlessly questioned, and having every move she made controlled.

With excellent support from our outstanding sector, she ended that relationship, and whilst some days, I know, are still very hard, a few years on she is here. She is singing—literally—with our local incredible DV choir, led by Shelley, who is also here. She is safe in her own home with her sons. She is loved. She has such a wide circle of friends and, testament to her huge heart, her spirit and generosity, she volunteers now to support other women walking that path.

I applaud and thank Ann, and I thank the other women and, tragically, the loved ones of those who have been brutally taken, who have shared their stories, including their friends and their relatives who have shared just how much they want to help but how helpless they feel when their loved one is so trapped.

This bill is so important. This bill represents a fundamental shift in how we understand and respond to domestic violence and its impact. For decades, legislation and associated penalties have contemplated single incidents of physical violence. This bill ensures that we understand and that we respond to behaviour that often forms parts of ongoing patterns of abuse that may not be physical but are so utterly damaging and designed to belittle, demean, instil fear, control, manipulate and take away autonomy.

This bill sees our parliament confronting this new frontier in our quest to eradicate domestic, family and sexual violence, and confront it we must. Collectively refuse to accept any woman being abused in any way, we must, and take real action that drives change that empowers women to live their lives freely and safely, that holds perpetrators to account, we must. Because perpetrators of coercive control do not want an equal partnership. They are not interested in resolving conflicts through healthy discussion and negotiation.

Perpetrators of coercive control are only interested in imposing their will and to achieve this they hurt, humiliate, intimidate, exploit, isolate, dominate and terrify over time, and over and over again. Many different kinds of abusive behaviours are threaded together into a destructive web designed to entrap the person subject to it. This terrible web of control featuring in so many abusive relationships is currently invisible to our criminal law. For too long, the criminal justice system has only been able to address individual incidents 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. For too long, too many people have sadly asked, 'Why doesn't she just leave?' with the day-to-day dynamics of control and domination within abusive partnerships not commonly identified, understood nor condemned as they absolutely should be. Slowly, and thankfully, together we are changing this so that the relevant question always becomes: 'Why doesn't he just stop?'

For far too long the lack of recognition by the criminal law, and more broadly by our community, has persisted. Through the introduction of this bill and its careful implementation, our government says 'no longer'. We utterly refuse to accept these attitudes and abusive behaviours, and we are utterly determined to do all that we can to help prevent violence before it starts, to shine a light and tackle it wherever it exists through legislation, through policy, through resourcing, through shifting community attitudes, and growing understanding of the gender inequality that drives violence against women and the role that every single one of us can play in ending it.

This legislation is such an important step forward. This bill creates a new offence in our Criminal Law Consolidation Act 1935 of the coercive control of a person with whom the defendant is or has been in a relationship. The offence will have a maximum penalty of seven years' imprisonment. It recognises that coercive control is a deliberate and abusive effort to control another person and names these behaviours within our criminal justice system as the offence of coercive control.

This bill ensures that the behaviours are understood as what they are—a serious crime involving psychological entrapment—and this bill will allow this utterly heinous behaviour to rightly be punished, as it should be. 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;

2. The defendant intends that course of conduct to have a controlling impact;

3. The defendant is or was in a relationship with the other person, meaning that they are or previously were a married or engaged couple, domestic partners, or in an intimate couple relationship; and

4. That a reasonable person would consider that the course of conduct would be likely to cause the other person harm.

The central element of this 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 a social, political, religious, cultural, educational or economic activity that they choose.

Fundamentally, coercive control is an assault on a person's free will which may take a range of insidious forms. The person subject to the behaviour might be forbidden to work or wear certain types of clothing. Their personal hygiene or intake of food might be regulated. They may be prevented from catching up with colleagues, isolated from family, 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.

The awful list of examples continues, sadly informed by real stories detailing their terrible impact on a person's life. In coercive control, restriction is achieved through various means, both physical and psychological. To make this clear, this bill provides that a person may be considered to restrict another person by either physical restriction, verbal or psychological restriction, removing the means by which a person is able to do something, deception or any other behaviour that 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. The broad definition of 'restrict' and, again, the list of examples reflect sadly what we heard directly from brave survivors during our consultation process about the breadth, the horrific breadth of tactics used in coercive, controlling relationships. I think that 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 those brave survivors is that the restriction is primarily psychological, achieved and maintained through the perpetrator constantly creating an atmosphere of fear.

Coercive control can be likened to blackmail or torture, but rather than a specific threat, coupled with a specific demand, the person subject to it lives day in, day out, sometimes year after difficult year with a relentless all-encompassing fear that serious consequences will occur if they do not conform to the perpetrator's wishes, consequences that go so very 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 their perpetrator.

Maybe they will be shaken, maybe they will be humiliated in front of friends or co-workers, maybe aggression will be directed against their children or a pet, and so they conform, they obey, they continue to walk on eggshells because it just feels easier and likely offers a better chance of keeping themselves and their children safe. We heard so many stories of survivors being financially controlled, deceived, gaslighted, stalked, monitored, shamed, emotionally manipulated or having their religion or spirituality used against them.

Physical violence may be a part of the control, but physical violence or a threat of it is not a necessary element of this offence. Verbal abuse alone can have an immensely controlling impact. Perhaps in punishment for some perceived disobedience, a perpetrator will corner the person they subject to this behaviour, tower over and uncontrollably shout and scream at them for hours. It is terrifying, distressing, unacceptable abuse in its own right and carries with it that implied threat of physical violence, with the person subject to it feeling that they could be physically harmed at any moment. Intense fear is created based on this potential alone.

Through this bill we rightly recognise that a person even if never physically harmed can be subject to serious, debilitating abuse and this could undoubtedly have a very controlling impact. The element in this bill of a controlling impact has been designed to cover any and all methods that abusers use to maintain control. No method of control should be considered inherently less serious 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? This will not always be an easy question, because freedom is not binary. A person does not either have total or no free will, or all or none of the power.

Judges and juries considering a charge of this offence 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?' It should be emphasised that this does not require proof that the person subject to the abuse was totally unable to choose a particular course of action. A person can still be restricted if their choices are unfairly limited. Maybe they can only do something on a particular day or at a particular time. Maybe they are forced to ask permission first or take elaborate steps to sneak behind the perpetrator's back so they are not caught disobeying. This is all restriction; this is all coercive control.

Coercive control is proposed to be a course of conduct offence. Course of conduct is not defined in the bill as it is not the intention to rigidly restrict the offence by requiring a number of incidents or a specific length of time of those incidents. 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, the 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 that the relevant conduct 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 effect of the fear the perpetrator creates. The perpetrator's pattern of behaviour instils that something could happen if the person subject to the behaviour displeases the perpetrator, even in periods that to an outsider might look relatively peaceful.

A useful analogy, I think, is the phrase 'carrying on a business', which appears in legislation pertaining to all sorts of matters in this place. A person carrying on a business might undertake different tasks on different days, have busier or quieter periods and might take days off, but their business continues to operate. Payments come in and new clients submit inquiries even on days the business operator does not work at all. Similarly, a person carries on their awful business of controlling, even if they go a period of days or weeks without engaging in any specific abusive behaviour, relying on the continued fear that they have created that they might just do so.

It is important to note that this bill is not intended to preclude a charge based on a single occasion of protracted control that is substantial enough that it could reasonably be described as a course of conduct provided it meets all of the other requirements of the offence, including that a reasonable person would consider the behaviour likely to cause harm. 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. Like dripping water slowly carving away rock, repeated small abuses can wear down a person's self-esteem and capacity to resist. Methods of control can compound each other. A perpetrator may use verbal abuse and humiliation to isolate a person from their friends and loved ones, making it even harder to seek alternative points of view and even easier for the perpetrator to manipulate and gaslight the person. Similarly, it need not be proved that the defendant intended to have a directly controlling impact by each behaviour, acknowledging that some behaviours may contribute to the overall controlling effect of the course of conduct. The judge or jury must consider whether the course of conduct overall was motivated by an intent to control.

This draft bill was widely consulted on, but before it was drafted at all we were really blessed to hear the views of a diverse range of community groups and individuals about coercive control, how legislation could impact their community and how they envisaged a potential offence. Their incredibly generous sharing of their experiences, expertise and perspectives was extraordinary, and I am really grateful to each of them who did so. Their voices and their courage have ensured that this legislation reflects what is needed and reflects community expectations.

One theme that was consistently raised throughout that process of discussion was a concern that a coercive control offence could unintentionally contribute to perpetrator misidentification. Misidentification occurs when authorities mistakenly treat the primary person subject to domestic abuse as the primary aggressor, possibly subjecting them to intervention orders or even prosecution. The effects of misidentification are devastating and they are ongoing. Even if criminal charges are dropped and intervention orders removed, trust in the system's capacity to help them when they reach out is absolutely lost. For Aboriginal women, many of whom already distrust government authorities due to the intergenerational trauma of colonisation and dispossession, once let down, this lack of trust can absolutely endure.

We do not ever want this offence to be weaponised by perpetrators to inflict further torment. This bill has absolutely been designed with this in mind. Perpetrator misidentification typically occurs because authorities focus on incidents of defending oneself or retaliatory behaviour without considering the broader context and balance of power in the relationship. This bill's central focus on the controlling impact of the totality of the behaviour will direct authorities' attention to those broader power dynamics in a relationship and the relative freedoms that have been enjoyed by the parties, making it very hard for perpetrators to gain any traction if they engage in system abuse by reporting the person they subject to abuse for coercive control against them.

It must be shown that the behaviour would likely cause physical or psychological harm, including serious distress, anxiety or fear. This provides a threshold of seriousness for the offence, another safeguard against perpetrator misidentification. This 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 those exceptional cases in which it would be understood why there was a restriction of a spouse or partner. It may sometimes be necessary for a partner to be barred from the home for either person's protection. It might be necessary to restrict contact with children if they may harm them. It might be necessary to restrict access to household funds if there is a risk that they might excessively spend money on alcohol, drugs or gambling. But 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.

The proposed offence applies to any persons in intimate couple relationships. This includes married or engaged couples, domestic partners or other intimate relationships, former or current. We acknowledge that coercive control occurs in other kinds of relationships too: between siblings, carers, by children towards parents or by parents towards children, or even in a non-family context. Indeed, coercive control can occur in any context in which one person seeks to have power and control over another.

However, this bill focuses on intimate partner relationships because we acknowledge the abhorrent link between coercive control and intimate partner homicide. This bill will only apply to coercive control in intimate partner relationships because we want to focus resources on this extremely high-risk area. The maximum penalty of imprisonment of up to seven years will mean that this offence is classed as a major indictable offence, reflecting the seriousness of the conduct.

This 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. However, the jury is not required to determine nor enumerate all the various kinds of restrictions that they found proved beyond reasonable doubt.

The bill provides that the sentencing judge may sentence having regard to the general nature of the behaviour that they determine to have been proved. 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 our Criminal Law Consolidation Act.

The bill also contains a sentencing principle to recognise children affected by coercive control. As we heard over and over again in our consultation, coercive control against an intimate partner significantly affects the physical, mental and emotional health and wellbeing of children, and they should absolutely 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 affected by it.

This offence has been designed to operate alongside other 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 are used to frighten and intimidate the victim and they may also constitute a range of standalone offences that should absolutely be punished in their own right: 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 account in sentencing to ensure the overall penalty for both convictions is proportionate to the totality of the conduct.

This bill is an attempt to capture and criminalise a deeply complex and utterly unacceptable phenomenon. Whilst every effort has been made to ensure the bill is as effective as possible, we are traversing a new frontier, and it will be vitally important to monitor and review the operation of this offence to make sure that it meets the needs of those brave survivors. This bill mandates a review of the offence to take place after the third and before the fourth anniversary of commencement.

I offer wholehearted, deep appreciation to all who have invaluably contributed to developing this bill: the Attorney-General, the Attorney-General's Department and particularly Laira Krieg, the Office for Women, the incredible staff in my ministerial office—Hilary Wigg and Ruth Sibley in particular—and in the Attorney's, Elliette Kirkbride. 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 also been really important in developing this bill.

I also wholeheartedly thank those who are involved in developing our award-winning See the Signs campaign, which has been engaged in by quite extraordinary numbers of people and particularly young people and has helped build awareness about what coercive control is and why we absolutely must all call it out and use our particular sphere of influence to drive change.

I thank the domestic, family and sexual violence sector. Every one of you is extraordinary. With compassion, care and a steadfast relentless desire to empower women and to advance profound change across our community that helps prevent violence in all its forms, you are there year after year, decade after decade alongside women at the lowest points, holding them as they take steps forward and sometimes a few back, until they find their power and never look back.

Again and finally, this bill is because of and for those survivors who have suffered through coercive control and contributed so incredibly thoughtfully and with such care for others to this bill. It is for those for whom this legislation is tragically too late. It is for those women in homes across our South Australian community whose autonomy has been diminished by their partner or former partner.

It is my absolute wish that in moving this legislation today, and as we take the appropriate time to ensure its successful implementation, those women will know that they are not alone, that there is a way forward and that we all walk together with them. I commend the bill to members and seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

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. Pisoni.

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