New South Wales Parliament has passed reforms aimed at strengthening protections for victim-survivors of domestic and family violence, including changes to break-and-enter laws and new offences covering covert stalking and the misuse of surveillance devices.
The legislation passed Parliament on 20 October and responds to both a 2023 High Court ruling and recommendations from the NSW Crime Commission’s investigation into the criminal use of tracking technology.
Changes to Break-and-Enter Laws
The reforms change NSW law so that a person who no longer lives at a property can potentially be prosecuted for breaking and entering even if they remain named on a lease or retain another legal interest in the premises.
The change applies where the person enters or intends to enter the property to commit a personal violence offence against a current or former partner.
A person will also no longer be treated as an occupant where an Apprehended Violence Order, bail condition, parole condition or other court order prevents them from living at the property or requires them to reside elsewhere.
The changes respond to the High Court’s 2023 decision in BA v The King.
In that case, the accused had moved out of an apartment shared with his former partner but remained a co-tenant on the lease. The High Court found he retained lawful authority to enter the property, meaning the circumstances did not satisfy the existing break-and-enter offence.
New Offence for Covert Stalking
Separate amendments also extend NSW stalking laws to situations where a person secretly monitors another individual without the victim being aware of the conduct.
Previously, the stalking offence required the victim to fear physical or mental harm. This created difficulties where surveillance was successfully concealed and the victim did not know they were being monitored.
Under the new framework, covert conduct can constitute stalking where it would reasonably cause a person to fear physical or mental harm if they knew about it.
The definition of stalking has also been expanded to cover situations where someone directs another person to carry out the stalking on their behalf.
Tracking Devices and Surveillance Advertising
The reforms follow the NSW Crime Commission’s Project Hakea, which examined the use of tracking and surveillance devices in domestic violence and organised crime.
The Commission found such devices were increasingly being used to monitor, intimidate and stalk victim-survivors. It also found that one in four known people who purchased tracking devices since the beginning of 2023 had a history of domestic violence.
The legislation creates a new offence for intentionally promoting the unlawful use of a surveillance device when advertising or selling the technology.
This means a supplier may face prosecution where an advertisement encourages an illegal use of a tracking or surveillance device, even if the supplier did not personally intend the eventual offence.
Laws Respond to Changing Forms of Abuse
The reforms are intended to address situations where technology is used to monitor a current or former partner without their knowledge, as well as legal gaps exposed by the High Court’s interpretation of existing break-and-enter laws.
NSW authorities will now move to implement the changes following their passage through Parliament.
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