The New South Wales Government has introduced new wide-spanning orders seeking to target high-risk domestic violence offenders. This has not yet come into effect, and will do so when proclaimed to commence, which is expected to be within 2024.
SDAPOs (Serious Domestic Abuse Prevention Orders) have been modelled off Serious Crime Prevention Orders (‘SCPOs’) which seek to prevent or restrict individuals from participating in serious crime-related activities.
SCPOs have traditionally been used against persons involved in organised crime including drug trafficking, money laundering, extortion, and firearms, such as outlaw motorcycle gangs and terrorist organisations.
In the second reading speech, Attorney General Michael Daley noted: ‘they will be tailored to high-risk offenders and the offender’s specific behavioural patterns.’
The Crimes (Domestic and Personal Violence) and Other Legislation Amendment Bill 2024 is proposed to amend the Crimes (Domestic and Personal Violence) Act 2007 (NSW) to introduce SDAPO’s.
What is a Serious Domestic Abuse Prevention Order (‘SDAPO’)?
A ‘Serious Domestic Abuse Prevention Orders’ (‘SDAPO’) will allow the court to impose any conditions it considers appropriate to prevent a person engaging in domestic abuse.
This may include being required to notify police when commencing an intimate partner relationship, restriction on the use of social media and dating apps, requirements to report to a police station at certain times, or requirements to report a change of address.
Other examples identified include a requirement that a person give authorities reasonable and necessary information to enable them to access data, such as a password to unlock a digital device, or a prohibition on the purchase or use of tracking devices and applications such as ankle bracelets.
There are no standard or mandatory conditions that ought to be part of every order, with the legislation ‘intentionally open ended’.
Who can apply for an SDAPO?
The Commissioner of Police or the Director of Public Prosecutions (‘DPP’) may apply for a SDAPO.
When can the Police or DPP apply for a SDAPO?
The Police or DPP can apply to the court for an order where a person:
- Has been convicted of two or more domestic violence offences with a maximum penalty of 7 years imprisonment or more, or
- Those who have been involved in ‘serious domestic abuse activity’ in the last 10 years.
‘Serious domestic abuse activity’ refers to anything done by a person that is or was a serious domestic violence for which the person has been charged (even if they have been acquitted (i.e., found not guilty) of the offence or had their conviction quashed/set aside). The definition of this appears to be extraordinarily broad.
If the grounds of making the order is in relation to 2 or more domestic violence offences carrying a maximum penalty of 7 years imprisonment or more, the appropriate court to hear the SDAPO will be the Local Court.
Where it relates to serious domestic abuse activity, the appropriate court will be the Supreme Court.
How will the Court determine that an order is appropriate?
To make a SDAPO, the Court is required to be satisfied that there are reasonable grounds to believe that the making of the order would protect a family member, a former, current or potential intimate partner, or a person in a domestic relationship with an intimate partner of the person, by preventing the person engaging in domestic abuse.
‘Domestic abuse’ refers to violent or threatening behaviour, behaviour that coerces or controls, as well as behaviour that causes another to fear for the person’s safety or wellbeing or the safety and wellbeing of others.
The Court is required to have regard to the views of a family member, a former, current or potential intimate partner, or a person in a domestic relationship with an intimate partner of the person in determining an application for a SDAPO, if this is available.
The legislation notes that SDAPOs may contain prohibitions, restrictions, requirements and other provisions as the Court considers appropriate to prevent the person engaging in domestic abuse. An SDAPO can be put in place for up to 5 years.
However, the conditions cannot require a person to answer questions or provide information orally, including that which is subject to legal professional privilege, held in confidence or otherwise protected.
Section 87E of the Act prescribes that it is an offence to knowingly contravene a SDAPO that is in effect. A maximum penalty of 5 years imprisonment and/or a $33,000 fine is applicable.
Can I contest a SDAPO?
An applicant for an SDAPO or the person against whom the order is made may apply to vary or revoke the order. However, if the person against whom the order is made applies, they must prove there has been a substantial change in the relevant circumstances since the order was made or last varied.
