By Paul Gregoire and Ugur Nedim
Having passed through both houses of NSW state parliament on 24 September 2024, the Crimes (Domestic and Personal Violence) and Other Legislation Amendment Bill 2024 is the NSW state government response to the “preventable” murder of Molly Ticehurst at the hands of her ex-partner in April of this year.
At the time of Ticehurst’s death, the alleged killer Daniel Billings was out on bail, due to a string of charges in relation to his former partner, which included sexual assault and stalk/intimidate.
The other key incident relating to stalking and intimate partner violence leading to death over 2024, was the double murder of Jesse Baird and Luke Davies by then NSW police officer Beau Lamarre-Condon, who’d had a fling with Baird and used his police gun in allegedly perpetrating the killings.
“These reforms include new offences to respond to the danger posed by repeated and intentional breaches of apprehended domestic violence orders (ADVOs), an entirely new scheme to help prevent domestic and family violence and other reforms,” a 2 September NSW Labor statement outlines.
In terms of the new scheme, the government is implementing the serious domestic abuse prevention orders (SDAPO) regime, which involves orders that can be applied to serious past offenders, when there are reasonable grounds to do so, and the legislation also made it easier for a sole parent to change a child’s name.
Aggravated breach of ADVO
“We have seen all too often that domestic and family violence can have devastating impacts for victim-survivors, who are overwhelmingly women who suffer abuse at the hands of men,” said NSW attorney general Michael Daley, during his 17 September seconding reading speech on the bill.
“Of course, this abuse can tragically turn lethal, as we have seen in too many cases in NSW. It is important to remember that such deaths are sadly not rare or isolated incidents,” he added, before outlining that almost a third of all homicides between 2000 to 2022 were domestic violence related.
The chief lawmaker then outlined the first key reform, which comprises of two aggravated offences having been inserted into the preexisting offence of contravening an apprehended domestic violence order under section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act), which is a crime that carries up to 2 years’ imprisonment and/or a fine of up to $5,500.
Daley explains that the Act provides for two kinds of apprehended violence orders: AVOs, which impose prohibitions and limits on individuals to protect other people, and ADVOs, which are imposed and designed to restrict behaviours in regard to domestic relationships. And in the 12 months to March 2024, over 39,000 ADVOs had been issued in this state.
The first aggravated offence is knowingly contravening a prohibition or restriction relating to an apprehended domestic violence order (ADVO) with the intention of causing physical or mental harm against the protected person or to cause them to fear this, which is now contained under section 14(1A) of the Act and carries up to 3 years gaol time and/or a fine of up to $11,000.
The second aggravated offence involves persistently contravening an ADVO, which is defined as contravening a prohibition or restriction on an ADVO after having already contravened the AVDO at least twice in the preceding period of 28 days. This is now an offence under section 14(1C) of the Act and makes the subject of the order liable to up to 5 years prison time and/or a fine of up to $16,500.
The Act further amends table 2 in schedule 1 of the Criminal Procedure Act 1986 (NSW), so that these two aggravated offences are listed under it, which means these crimes should be tried summarily by the NSW Local Court, unless the prosecution decides to see them tried in the NSW District Court.
Abuse prevention orders
The other major change involves the new serious domestic abuse prevention order (SDAPO) regime that sits under new part 10A of the Act and has been modelled upon serious crime prevention orders, which the Baird government enacted in 2016, with this new regime having the intention of ensuring that domestic violence is treated as seriously as organised crime, Daley advised.
New section 87B of the Act empowers courts to issue SDAPOs, when requested by the NSW police commissioner or the NSW Director of Public Prosecutions (DPP), if satisfied that an offender’s case meets three criteria: the offender is over 18, their prior convictions or charges over the past 10 years warrant it, and its issuance would prevent violence against an intimate partner or family member.
“For a prevention order to be made on the basis of charge,” the attorney general explained to the NSW lower house, “the eligibility threshold will be where the person has been charged with a serious domestic violence offence, regardless of whether the person has been tried, acquitted or convicted, and including where a conviction is quashed or set aside.”
According to Daley, the difference between an SDAPO and an ADVO is that the new orders have a wider scope and seek to prevent “potential future intimate partners of a person” being harmed, whereas the preexisting orders focus on a sole victim-survivor. And SDAPO matters are dealt with via civil proceedings, which means the relevant standard of proof is the balance of probabilities.
Specific conditions the subject of an SDAPO must abide by include regularly reporting to a police station, advising police of change of address or if they enter into an intimate partner relationship. And they can further involve prohibitions on social media, including dating apps, a requirement to present police with passwords for devices and a prohibition on the use of tracking devices.
An SDAPO can be applied to prevent abusive relationships involving its subject and their family members or “former, current or potential intimate partners” or persons in a domestic relationship with their intimate partner, including a former intimate partner. And as applies to AVOs, an SDAPO results in automatic revocation of firearm permits or prohibited weapon permits.
The duration of SDAPOs must not exceed 5 years, but there is nothing to prevent the imposition of second or subsequent orders upon a subject. There is a right to appeal the application of an SDAPO to the NSW Local Court. And new section 87E of the Act makes the contravention of an SDAPO an offence, which carries up to 5 years inside and/or a fine of up to $33,000.
Further changes
Section 8 of the Act contains the definition of stalking, which, prior to last week’s changes, involved following a person, the watching or frequenting of the vicinity of the person’s place, business, work or any other place frequented by them or contacting or approaching the person using the internet or any other technology means.
This definition has now been extended to incorporate the monitoring or tracking of a person’s activities, communications or movements using technology or in any other way, as well as such monitoring that involves contacting or otherwise approaching the person.
And the other key reform is a slight amendment to section 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW) to ensure that sole parents are able to change the name of their child in their care, without the input of the other parent, which aims to ensure that a child’s name can be changed for protective purposes, whilst not informing the individual their being shielded from.
