Reforms to help protect victim-survivors of family and domestic violence and hold perpetrators to account have passed NSW Parliament.
The legislation, which passed yesterday afternoon, closes legal loopholes to make it easier to prosecute perpetrators for certain offences and targets the criminal misuse of tracking devices.
Making it easier to hold perpetrators to account
Perpetrators who are intent on harming their current or former partner will no longer be able to hide behind a lease or joint ownership agreement to avoid break and enter charges.
Under the Government’s reforms, perpetrators who no longer reside at a premises will be able to be prosecuted for breaking and entering regardless of their legal or equitable interest in it.
This will apply in circumstances where a perpetrator who is no longer an occupant commits or intends to commit a personal violence offence against their current or former partner.
The Government has also changed the law to ensure an accused will no longer be considered an occupant if an Apprehended Violence Order, a court order, bail condition or parole stops them from residing there or requires them to live elsewhere.
The reforms responded to the 2023 High Court judgment in BA v The King. In this judgment, the court found a defendant who forcibly entered his former partner’s home and committed an assault could not be prosecuted for breaking and entering because he was still named on the lease despite having moved out.
Criminalising covert stalking
The legislation makes it a crime to covertly monitor a person where the victim is unaware they are being stalked.
It follows the NSW Crime Commission’s Project Hakea report which found tracking and other surveillance devices were increasingly used to facilitate domestic and family violence and organised crime.
The pre-existing offence of stalking required the victim survivor to fear physical or mental harm, a threshold which could not be met if the perpetrator successfully concealed their conduct.
The new offence under the Crimes (Domestic and Personal Violence) Act 2007 covers covert stalking which would reasonably be considered to cause someone to fear physical or mental harm if they were aware of it.
The legislation also makes it an offence to direct a third party to engage in stalking on someone’s behalf or promote the unlawful use of a surveillance device.
A new offence under the Surveillance Devices Act 2007 ensures someone can be prosecuted for advertising a device in a way which encourages its unlawful use, even if this is not what the supplier intended.
Attorney General Michael Daley said:
“We’re determined to have the strongest possible legal framework to protect victim-survivors of domestic and family violence.
“These reforms close legal loopholes and ensure perpetrators can no longer hide behind legal technicalities to avoid prosecution for the harm they cause.”
Minister for Police Yasmin Catley said:
“Technology should not be a weapon of domestic abuse. Project Hakea exposed disturbing ways perpetrators are using tracking devices to terrorise victims. We’ve now passed laws to help put a stop to it.
“We’ve strengthened bail laws, introduced tougher penalties for repeat ADVO breaches and given police greater powers to monitor high-risk offenders.
“NSW Police are relentless in their pursuit of domestic violence offenders. Through Operation Amarok alone, they’ve made more than 8,000 arrests and laid 17,000 charges. More domestic violence offenders are being held on remand than ever before.
“Domestic violence is still far too prevalent, but the laws are getting tougher and police are coming after perpetrators.”
Minister for the Prevention of Domestic Violence and Sexual Assault Jodie Harrison said:
“These changes are common sense and reflect the reality of victim-survivors’ experiences.
“The passing of these laws closes legal loopholes and continues our work in strengthening protections for victim-survivors and holding perpetrators to account.
“The Minns Labor Government continues to put the safety of victim-survivors first as we address domestic and family violence in our state.”
