Jenny Leong contributes to bill criminalising coercive control

On behalf of The Greens I contribute to debate on the Crimes Legislation Amendment (Coercive Control) Bill 2022. While I note the serious concerns that have been expressed by the sector about the Government's bill, which I will go into during the course of my contribution, I confirm that The Greens will not oppose this bill in the Legislative Assembly. The Greens, through our colleague in the Legislative Council Ms Abigail Boyd, have secured an inquiry into this legislation in the hope that some of the serious concerns raised by those in the sector, and those with expertise and lived experience, can be listened to and addressed, and that the bill will be returned to this Chamber in a different form before the end of the parliamentary term. The Greens support criminalising coercive control, but crucially we do so in close consultation with and the support of the domestic violence sector and those with lived experience.

The Greens are in a position to support this bill only on the basis of recognising that significant amendments would be needed and required in the Legislative Council to be able to achieve those aims. Criminalising coercive control is an important reform. But it has to be done right or it will create more harm than good—something that we have heard consistently throughout all of the consultations. I start by acknowledging, as the Minister for Emergency Services and Resilience, and Minister for Flood Recovery, acknowledged when she spoke, that what we are talking about today is sensitive. When talking about issues of domestic and family violence we need to recognise that the reach into our community is so significant that no-one in this place would not have had personal experience of, or a connection with someone who has experienced, domestic and family violence or personal violence.

Coercive control is an insidious form of domestic and family violence that often leads to physical abuse. Many victims of domestic abuse live in a constant state of fear, in relationships marked by dangerous patterns of controlling behaviour. Perpetrators of coercive control seek to control their victims with actual or threatened harm. Harm does not always mean physical violence; it manifests itself in a variety of ways. It could be the grabbing of someone's phone; it could be providing them with more alcohol than they want to consume at a certain time; and it could be by controlling people's finances, people's connection to family, people's connection to community and people's autonomy to be able to make choices for themselves.

The seriousness of coercive control and the nuanced ways it manifests necessitates a considered response, which is exactly why this Parliament took the issue to an inquiry which recommended a variety of reforms spanning all corners of the justice system and domestic violence sector, and a staged process for its implementation. We must criminalise coercive control, but doing it the wrong way risks creating more harm than taking no action at all. The proposed bill would create an offence in the Crimes Act 1900 to criminalise coercive control in current and former intimate partner settings, with a maximum sentence of seven years' imprisonment.

Key concerns that the NSW Women's Alliance—backed in by more than 220 domestic and family violence advocates—has raised about the proposed bill are as follows: It is concerned that requiring proof of a specific intent to coerce or control would place a significant burden on the prosecutor; it is concerned that the bill is limited to intimate partner violence excluding many forms of abuse suffered by victims in the community; it is concerned that there is no singular concise definition of "coercive control"; and it is concerned that there is no contextual definition of "domestic and family abuse", which will cause confusion when the legislation is put into practice.

It is incredibly disappointing that instead of listening to those concerns, to the committee, to the domestic violence sector and to those with expertise as a result of their lived experience, that theGovernment has chosen to rush this bill through now while these concerns still remain on the table. I acknowledge and recognise the Attorney General is in the Chamber for this debate. In his second reading speech he noted that criminalising coercive control must be approached with great care and caution. I could not agree more, which is why I ask how the Attorney General feels about claiming to be proceeding when there is so much concern from the sector and domestic and family violence advocates and experts who do not support taking this action right now.

Members know that the women's safety and domestic violence sector is unanimous in its opposition to this bill as it is currently drafted because it has taken the extraordinary step of writing to all members of the New South Wales Parliament to try to slow down its passage through the Parliament. The first draft of this bill was made available to the sector only in late July. The vast majority of feedback provided during the consultation has not been taken on board by the Government. I note that the Attorney General went through in detail the vast amount of consultation that has been undertaken, but consultation requires change. There is no point in engaging in consultation unless we are changing and shifting what has occurred in response to the experts and listening to the advice of those with lived experience in the sector. It is not okay to cherrypick the bits that we want while ignoring the other voices of concern.

That is why I want to take the time to put on the record the concerns about this bill raised by a number of women's safety and domestic violence sector advocates. It has the potential to harm the very people that it was designed to protect. Christine Robinson, chief executive officer of the Wirringa Baiya Aboriginal Women's Legal Service, noted that the bill's narrow definition of "relationship" does not consider some communities where more people can be involved in acts of violence. She stated:

The bill does not allow for the practices that may happen in Aboriginal communities, and the NSW Government must take into account Indigenous experiences.

Redfern Legal Centre's financial abuse service has repeated concerns over the rushed introduction of this legislation and the lack of proper and meaningful consultation with the sector. Gayatri Nair, who also coordinates the Economic Reference Group in New South Wales, stated:

… economic and financial abuse needs to be recognised in NSW, but we are disappointed that a new criminal offence has been introduced without proper and robust consultation.

Women's Legal Service NSW also does not support the bill in its current form. It stated:

We need to start with a contextual definition of domestic, family abuse—violent, threatening or other behaviour that coerces, controls or causes fear. Without a contextual definition, the focus will remain on incidents in isolation which results in the misidentification of the person most in need of protection. Further, with such high mental elements of intent to coerce or control, there will likely be few successful prosecutions. We fear this will have the effect of providing victim survivors with false hope of protection and embolden perpetrators to continue and even worsen their abuse as they will likely be able to act with impunity.

The Economic Abuse Reference Group, an informal group of community organisations that collectively work to influence government and industry responses to reduce the financial impact of family violence, noted:

The introduction of the new coercive control offence will require significant and extensive cultural and systems reform. A failure to allow the necessary time and provide appropriate resources for such cultural and systems reform will lead to an underprepared and under-resourced police force, court system and legal profession struggling to implement important reforms. The consequence may be exposing women, children and other victims of survivors to even greater risks.

Domestic and family violence advocate Rosie Batty has warned:

If criminalisation is not given enough time for consultation with victim survivors and experts in the field, the complex legislation has the potential to retraumatise the people it was designed to protect.

The NSW Women's Alliance has repeatedly called for longer and more considered consultation and development to ensure we are in the right place to introduce this legislation. Domestic Violence NSW is the peak body for specialist domestic and family violence services in New South Wales. Acting Chief Executive Officer Renata Field stated:

We are concerned that important issues raised by experts in the field have not been sufficiently heeded and, therefore, a second round of open consultation is essential to support the best and safest outcome for victim survivors.

Renata continued:

If the bill were to pass in its current form, we are concerned at best it would be under-utilised and not really help the people it is set up to help. At its worst, it could create issues of misidentification and not provide support to those who really deserve it.

[Extension of time]

The concern about misidentification is real. A recent ABC article by Hayley Gleeson in March 2022 paints a damning picture. Lee, which is not her real name, lived in suburban Melbourne with her boyfriend. One day she reached breaking point and finally called the police. For two years she had been struggling to cope with her boyfriend's physical violence, financial abuse and threats to withdraw his sponsorship of her visa and have her deported if she left him. He often cut her allowance to punish her but would not let her work casual shifts in the beauty industry, insisting instead that she stay home to look after their child. When officers arrived, she was beside herself with frustration and relief. She was wailing and grabbing her thighs, yelling in her language. The police were flummoxed. They had no idea what she was saying, but Lee's boyfriend was calm and well spoken. "She is crazy," he told them, "Clearly she has mental problems." The officers accepted his account that she was the violent one and, apparently without even trying to talk to her, arrested her on the spot.

That is not just happening in Victoria. In the past days, weeks and months I have heard of numerous incidents of women of colour and First Nations women who have been misidentified in domestic violence situations. The situation is real. For a First Nations woman to be misidentified by the NSW Police Force, the risk of facing a death sentence is real because we have never properly implemented the recommendations around First Nations deaths in custody. For women of colour or migrant women for whom English is their second, third, fourth, fifth or sixth language, the issues of misidentification are real and they last a lifetime. As someone who has suffered racist and sexist abuse at the hands of the NSW Police Force, it is incumbent on members in this place to recognise that wealthy white women will not suffer if the legislation is not drafted properly. First Nations women, migrant women and women of colour will suffer as a result of us not getting it right. The legislation risks increasing the number of cases of misidentification.

Instead of listening to the serious concerns that have been set out by the sector, the Government has chosen to push through the bill. Despite continued claims by the New South Wales Government that it is listening to consultation, the Government has not acted accordingly. Sadly, that is not new. For over a decade the Government has not been listening to the absolutely desperate pleas of the domestic and family violence sector to address gender‑based family and domestic violence. We need a significant boost to funding in this area. Rushing through coercive control legislation might change the Crimes Act, but it will not address the scourge of domestic and family abuse in our communities.

I acknowledge and note the work of my Greens colleague in the other place Ms Abigail Boyd, who is responsible for the portfolios of Domestic Violence and Attorney General and who introduced a coercive control bill in 2020. She drafted her bill in consultation with academics, victim-survivor experts and frontline domestic violence workers over 18 months and made many revisions. I also acknowledge the tireless work of the advocates in the domestic and family violence space. It is challenging to navigate that space when many frontline services rely on the support of the Government while pushing for policy and legislative reform. I recognise their efforts to navigate that space and ensure people in our community are safe.

The Greens are committed to getting the reform right. We will not be rushed by the Government. We will not be rushed by election cycles. We will not be rushed by the time limits that are placed on debate in the Chamber. We will ensure that we get to the right point. It appears the Opposition has not heeded the concerns of the sector and plans to support the Government in passing the bill in its current state. I hope upper House Labor members work collaboratively with us to address our serious concerns. The Greens members in the upper House will attempt to salvage the situation and ensure that the law is not used as a weapon against those whom it is intended to protect.