Brennan Justice Talks 2024 Making the Law More Responsive to Domestic and Family Violence

Anthea:

Good evening, everyone. It is my pleasure to welcome you to the second event in the Brennan Justice talk series and our second Justice talk for this session and tonight's presentation from Associate Professor, Jane Wangmann, entitled ‘Making the more the law more responsive to domestic and family violence: Is criminalizing coercive control the answer?’. My name is Dr Anthea Vogel and I'm the faculty co-director of the Brennan Justice and Leadership program, and I'm really delighted to see so many of you filtering into the zoom this evening. I'm joined by a few key members of the Brennan Justice team; one of my fellow co-directors from the LSS, Chloe Mackay, who many of you will have met. Crystal Meikle, our wonderful student programs coordinator, and, of course, Associate Professor Jane Wangmann, who will be familiar to many of you, not only as a member of our faculty here at UTS law, but also as the former director of the Brennan Justice program. It's a real pleasure to welcome Jane back, wearing a different hat as a presenter of our Justice talk this evening. Next slide, thanks Jane. 

Before we officially begin tonight's presentation, I would like to take a moment to acknowledge the Gadigal people of the Eora Nation upon whose ancestral lands our city campus now stands.  I'd also like to pay my respect to Elders, both past and present, and acknowledge them as the traditional custodians of the knowledge of the various lands that we were all zooming in from this evening. As part of the Brennan community, and a community that is absolutely centrally engaged with questions of Law and Justice, I really want to note that this isn't just a symbolic acknowledgement but it is a substantive one, that sovereignty over this land has never been ceded, and that we are committed to treaty, to self-determination, and to Indigenous sovereignty over the lands where we work and live - and throughout the presentation, and as we get going, please feel free to share the lands that you're zooming in from this evening. 

So, before we launch into the meeting, I'll do some light Zoom housekeeping, much of which you will all be familiar with. Tonight's presentation is being recorded, but only those of us who have our videos on and those of us who speak will feature in tonight's recording. There will be lots of time - or some time for questions at the end. I encourage you to engage with Jane's talk and ask questions as they occur to you. It's also fine for you to pop those questions in the chat throughout the presentation and once the presentation has ended. There are lots of us from the Brennan Community zooming in tonight and it would be lovely to see your faces if you are asking a question and you're able to pop your video on. Last, but not least, you are all of course entitled to your ROJ points for the talk this evening, but please, if your Zoom name is different to your name on Careers Hub and your name as registered at UTS, just send Crystal a quick email in the chat and she'll be able to register your ROJ points. So, with all of that settled, it is really my pleasure to welcome our special guest and speaker, Associate Professor Jane Wangmann, and introduce you to her. So, Jane's research is primarily concerned with legal responses to domestic and family violence, and Jane has particular expertise in understanding how the law defines, understands, and conceives of this particular harm. Jane's work draws on nearly 30 years of experience in the field of domestic violence and the law. Previously she has worked as a solicitor in a Community Legal Center, as a senior policy officer at the New South Wales Attorney General's Department, as it was formerly known, and at the Australian Law Reform Commission. And so, with that, I'm really pleased to hand over to Jane to speak to us tonight about coercive control and invite you all to listen closely and engage with Jane presentation at the end where we have some time for questions. Thanks so much, Jane. 

Jane:

So, thank you Anthea and the Brandon program for inviting me to give this Justice talk tonight. As Anthea mentioned for so long I've been on the other side organizing these events and so it is actually a great pleasure to be here tonight presenting on my own work. I too acknowledge that I'm coming to you this evening from the lands of the Darkinjung people of the beautiful Central Coast. I pay my respects to Elders, past and present, and I'd also like to acknowledge and extend that respect to any Aboriginal and Torres Strait Islanders who are joining us here this evening. I'd also really like to acknowledge the many Aboriginal women who have worked for decades around domestic and family violence. They've provided immense leadership in this area, and frequently without sufficient recognition. In making this acknowledgement of country I'm also very conscious that when we talk about the law in domestic violence, it's important to recognise the way in which the law has been used, and misused, against indigenous people. It certainly hasn't necessarily provided Aboriginal women with safety, and we've seen many Aboriginal women misidentified and criminalized when they report domestic violence to the police - and these concerns were particularly centralised in the debates around the criminalization of coercive control and I'll return to some of them during my presentation. 

So, my presentation today will focus on, I guess, understandings of domestic violence and coercive control first, why there's been this move towards criminalization, the developments in New South Wales, what it hopes to achieve, some lessons and some issues that I think that we should follow now that the offense is in operation. So, I want to start by giving you a bit of background to me in my work, and I know Anthea has already done this but I want to repeat it mainly because it, in very many ways, it shapes and frames my thinking around coercive control, and also other parts of my work. So, I started working this area over 30 years ago - which makes me feel old - but I started out working as a solicitor in a Community Legal Centre that specialised in domestic violence work. So, I was going to court, I was being a duty solicitor, and I was doing AVOs, providing legal advice and various other things. I moved on to do government policy work, again primarily around violence against women. I worked in law reform commissions, again around family violence and sexual assault. And now I'm an academic researcher, looking into these areas as well. So, throughout all of this work, what I'm really interested in is the law as it's practiced and experienced by people; so, I'm really interested in this question of implementation, rather than simply the law as it's written on the books. And so hopefully you see that come through in this presentation. 

So, I'm going to start with understandings about coercive control, and I appreciate that many of you may already be aware of this and have good knowledge in this area, but I find that it's a good place to start. Also, one of the things I've noticed in my work since 2020, and it's caused me great frustration, has been the amount of misunderstanding and misapprehensions about what coercive control is, particularly in the media but also in policy discussions in the community more generally. So, what we have on this slide are comments that victim-survivors made to the New South Wales Joint Select Committee or the Queensland Women's Safety and Justice Task Force. If you've worked in the area of domestic and family violence before, these comments would be familiar to you. Other comments that are very familiar are “it was like walking on eggshells”, “It was a cage or a web”. One of the things that I think it's really important to appreciate at this outset is that this understanding of coercive control comes from victim-survivors themselves; it's not something that's been, you know, invented through policy work or invented through research. It's actually what victim-survivors have told us. I did some research way back in the early 2000s, and one of the questions that I asked women when I was doing this research was very simple: how would you describe your relationship? So, I didn't ask them about control, but that was how women described it to me. So, for example, Francis said to me “Looking back, it was just a full-on controlling sort of relationship”. She said that the control was the worst thing that had happened to her, and I interviewed her quite a number of years after she had separated and one of the things she said to me, which I think really captures the impact of coercive control, is “I just became a nonperson, which is what I sort of struggle with now: trying to figure out who I am”. And, so, I think that really captures it. 

I'm just going to move on to more official or formal definitions, but I should say, much like domestic and family violence more generally, there is no agreed or set definition of what coercive control is, so it's part of the problem that we have. On this slide are the two ways that those inquiries have sought to describe and define the concepts. On the top you have the New. South Wales Joint Select Committee, and on the bottom you have the Queensland Women's Safety and Justice Task Force. Hopefully you can see that. Both of them emphasise the patterns of behaviour, the use of physical and non-physical forms of abuse, and the impact of those behaviours on the victim. More recently, we have work at the federal level. So, national principles to address coercive control were developed last year. They have many similarities to what you see on this slide here, but they also go on to point out a number of other important things. So, some of the behaviours used by perpetrators are incredibly subtle. We often talk about perpetrators being some of the most creative people – like, they really know how to develop things particularly targeted to a victim - and so sometimes it's only the victim that really knows what those behaviours mean in the context of their relationship. Behaviours might change over time, particularly after separation. Perpetrators might manipulate legal and other systems to continue their abuse. And, finally, the national principles point out that coercive control is gendered that what we are largely talking about here is men's violence against women, and that race, class, ability, and sexuality intersect and frame the experiences of coercive control - not only the experiences of coercive control, but also how the service delivery assists or doesn't assist women, and we need to think about that. So, kind of to sum it all up, coercive control then isn't a list of behaviours – like, it's not a list of non-physical forms of abuse. What it's getting at is how the behaviours combine, build on each other, and create this structure, or architecture, of control. Control is about describing this, and its impact. 

So, one of the key writers in this area is Evan Stark and he describes it as a ‘liberty crime’, which I think really tries to capture what we mean by the impact of coercive control. So, one of the reasons why I start with this is, also hopefully you can start to see that there are real challenges that the law might face in defining and responding to coercive control, like to do it in an adequate way - to really respond to this lived experience. And this is something that I want you to keep in mind when I actually start to talk about the way in which the law has responded to it, and to ask yourself whether or not you think it has adequately captured the harm that victim survivors have told us about. So, before I leave coercive control, I've just got one more thing to say which is another one of my frustrations. This understanding of domestic and family Violence isn't a new thing. So, the language of coercive control might be new to very many people, and it certainly became very popular from 2020 onwards, but this understanding of coercive control - that domestic violence involves power and control - is long-standing. It's from the 70s and 80s and beyond, and certainly when I was a solicitor, which was many years ago now, this was the understanding that I brought to my work. So, it might not have been legally actionable, but it framed how I responded and dealt with my clients. It's also true that this understanding of power and control has been reflected in some of our government policies and legislation, although it might not have been acted on. So, since 2006, power and control was mentioned in our AVO legislation. Since 2012, it's been mentioned in our Family Law Act. So, if I say it's not new - and what I have here, that's the Duluth power and control wheel, which many of you would be familiar with, and it's very long, like, was developed many years ago and is very longstanding. So, if I'm saying it's not new, what is new? What is new is this much more intense and explicit discussion about the nature of coercive control, like, on a widespread level. So, moving beyond the sector. And, as someone that's been around for a very long time, this has been a much richer and much deeper discussion than perhaps we've had before, and this is a good thing. So - and we're seeing shifts in thinking. So, I gave a presentation on this - I think it was the beginning of last year now - and one of the workers in the room said that she had a client who had gone to the police station and said, “I'm experiencing coercive control”. So, just that power of giving language to people about what their experience is, is also a good thing and a new thing. 

The other thing that's new is talking about the ways in which the criminal law could better respond to this harm. So, if you think about this history, the criminal law has been quite slow to respond to the harm and, regardless of where you sit on the criminalisation debate - and I'll touch on that in a bit more - is that these reforms do represent a legislative response that is trying to better respond to the lived experience. And we can acknowledge that even if we have some questions about how well it does so. So, why is criminalisation the area that we're going into? The key argument for criminalisation is that the recognition that the traditional focus of the criminal law, in terms of domestic violence, has been on discrete incidences of largely physical forms of violence, and that this leaves much of the behaviour that victims complain about and often say is the most harmful to them – so, psychological abuse victims have often said to me that's the most harmful - beyond the reach of the criminal law. So, while there are some traditional criminal law offences available for non-physical forms of abuse – so, many of you would be familiar of offences around threats, intimidation and stalking, harassment via misuse of telephone technology and so on through text messages - the thing that's different about coercive control offences is that, for those offences they're all charged separately and they don't capture the full range of behaviours within a, like, a single package of an offence. And what this means is that, up until now, domestic violence has been addressed as these single discrete charges. So, you might have, you know, a charge of common assault there, charge of property damage over there, maybe a charge of stalking. And it's made it really hard to see - if not impossible to see – how the charged act function: is it a red flag? Are we seeing an escalation of behaviour? Like, you really can't see the picture of the way in which the charge happens within the relationship. It also makes it really easy for defendants to successfully argue that it was minor, it was trivial, “I was drunk”, “I was stressed from work”, and sort of really minimizing and deflecting those behaviours for a discrete charge. So, the coercive control offence aims to change this; it aims to make everything, or at least a lot of things, visible at the same time. 

The sociologist, Michael Kimmel, uses a really powerful analogy to explain the difference between looking at incidents and looking at context, which is what the coercive control offense does. And I think it's a really useful analogy. So, I'm going to use it here with you tonight. He says it's like the difference between looking at the still from a movie. So, I might look at the still from a movie and I might think it's a comedy, or I might think that this happened or that happened. But, when I watch the whole movie, I get a completely different picture of that still, because I see it in context. And so, this is what the coercive control offence is kind of aimed to do, is to look at a whole lot of forms of behaviour together and see it in the context to decide whether it was coercive control or something else. 

So, while I'm going to focus on the law in New South Wales, because that's where we are and this is the first Australian jurisdiction to criminalise coercive control, I think it's also important to have a little bit of a picture about what's been happening across this country, because there has been quite a flurry of activity. So, interest in criminalisation in Australia comes from developments overseas; so, England and Wales introduced an offence in 2015, Ireland and Scotland followed in 2018, and Northern Ireland in 2021. These are the countries we tend to look at the most because they're common law countries and they've got a number of similarities to us and shared history around certain things. But I think it's worth noting that there has also been developments in other European countries and civil law countries and so on. So, two Australian states have made concrete moves in this area, so New South Wales I'm going to talk about tonight. Queensland also passed legislation this year and it is expected that its offence will start next year. South Australia is close behind with a Bill currently before its Parliament. There's been conversations in Western Australia, the Northern Territory, and the ACT. The only places where there isn't activity is Tasmania, which has long had an offence of economic abuse and emotional abuse; they've had those offences since 2005. They've been little used, which raises that question of implementation which I can come back to. The other place where it's not happening is Victoria, and I'd suggest that it's probably been because Victoria had its Royal Commission into Family Violence. There's been a whole lot of work that's come out of that. And one of the clear messages from that Royal Commission was: we need to do something around currently available laws before we add in another more complex law. And that's kind of been where their approach has been. So, one of the reasons why I think this context is important, is that we start to see some different approaches across the country, which are going to be interesting to watch. So, for example, New South Wales and the bill in South Australia both limit their offence to intimate partner relationships. Queensland doesn't. So, Queensland is enabling the offence to apply to a wider class of relationships, so relatives, and so this will be something that's interesting to watch. 

For those of you who have been following these developments across the country, you'd probably be aware that this has been quite a divisive, and continues to be a divisive time, for the domestic violence sector in terms of working out the best way to respond to the harm of coercive control. So, we all agree that the harm is a really serious one, but there are questions about what is the best way to get the law to do these things. There are many within the sector, including victim-survivors who are strongly in favour of this change. At the same time, there are many, including victim-survivors, who are against criminalisation, drawing attention to the overwhelmingly negative impact that this is likely to have on Aboriginal and Torres Strait Islander people. There are also many within the sector who are highly cautious; they ask whether more law will make a difference, what we might do instead, and whether we need to do a whole lot of groundwork before introducing this kind of more complex offence because it might have unintended consequences. And, indeed, many of the people who are in favour of criminalisation share these concerns. For those of you who know me or are familiar with my work, then you'd know that I sit pretty squarely in the cautious box. And this is not to say that I don't think that the law should respond and take account of coercive control: I definitely think it should. I think that all key legal actors - police, lawyers, judicial officers, other court support workers - should bring an understanding of coercive control to their work if they're going to do it well – like, they just should. But I also think that we need to look beyond criminal law, and I've been concerned about that sort of central focus on criminal law. This is important to family law, immigration, social security, tenancy – like, the broad spectrum - and we’ve seemed to have had quite a narrow focus. So, what we see in all of these debates and division, and also the work of governments to respond to it, is a number of tensions that the government has sought to balance. So, one of them is not to overreach. So, how do you sort of craft a law that doesn't overreach into areas that it's not meant to? Like, there might be things about the way in which some people have decided to organise their relationship. It's not intended to, sort of, overreach into those areas. The governments have also wanted to avoid the risk of misidentification. So, that's where primary victims have been identified as offenders in traditional criminal offences - I'm going to return to this problem in a bit more detail later. There's also been concern about how to craft an offence that doesn't add to the over-incarceration of Aboriginal people generally, at the same time as, like, providing a mechanism that does enable some sort of legal response to the serious harm. So, I suggest to you that this is an incredibly difficult balance to navigate. And so, on the one hand, we see that the government has really tried to craft a law that moves away from the violent incident model, that was not appropriate for domestic violence and is attempting to make lived experience. However, I think we have some questions about whether the balance is right. So, as you'll see, I'm going to turn to the offence in a minute, it's incredibly narrowly drafted. And so there are concerns about whether, in fact, it's so narrowly drafted that it's going to be difficult for anybody to use. And so, that's sort of one of the questions in the balance. So, I'm going to kind of skip over this slide quite quickly; its main purpose is to show you that the New South Wales government went through a number of consultative phases to get to the stage where we are today. And I think that's worth thinking about, and I was involved in a number of those. Obviously, if you look at the dates, we've been writing submissions for a number of years now. The act that creates the offence was finally passed at the end of 2022, so in November. However, the offence only commenced on the 1st of July this year, so that's a bit over 18 months of lead time. What this lead time was intended to do, was to allow for a period of time for education and training - so, particularly of the police but also of other key personnel -, to allow for a Community Education campaign - some of you might have seen it in your social media feed -, to make sure that, I guess, the criminal legal system is the best place to be able to deal with the offence when it does become operational, which it has on the 1st of July. 

So, at this stage, I'm going to provide a broad-brush overview of the offence, just so that the issues that I want to talk about make a bit more sense. If any of you have looked at it, you will know that it is a very complicated complex offence and, indeed, I might say that Queensland and South Australia are similarly complex and complicated. And I think that's just something to look at. And, for those of you that are interested in legislative drafting, I encourage you to have a look at Scotland, for example, which is quite a simple offence. England and Wales is a little bit more complicated but they are far more simple than the offence that we have drafted. And, if one of the key intentions with general community education, I'm not sure that this complexity meets that. Anyhow, I'm going to go through all the components. So, these are the things that I think are important to recognise. 

So, one is the offence isn't called ‘coercive control’, it's called ‘abusive behavior towards an intimate partner’. 

To be charged with the offence, you must be an adult, however, victims can younger. So, it is possible, for example, for a victim who is, say, 16 years of age and the alleged offender is her ex-boyfriend, and he's 18. So, that's possible. The victim can be younger, but the offender has to be an adult. 

The offence only applies to intimate partners. This was subject to a lot of debate about whether it should be more, like, wider. And, as I said, Queensland is - I'll return to that. 

It seeks to criminalise a course of conduct. So, this means behaviour that's been engaged in repetitively or on a continuous basis; there is no minimum number, it is just that there is a pattern of behaviour over a course of time and that it involves abusive behaviour. 

‘Abusive behaviour’ is really, widely defined in the act; it's non-exhaustive. It includes a whole lot of non-physical forms of abuse, so financial and economic abuse, isolation, denigration, and so on, so things that we normally wouldn't see the criminal law responding to. But it also includes physical violence as well, and sexual violence for that matter. 

We then also need to - the prosecution then also needs to prove that the person – so, this is the alleged offender - intended that course of conduct to coerce or control the other person. So intention is the mental element - it's a very high mental element. I'm going to return to that in a bit more detail in a minute. 

Finally, the prosecution also needs to – so, what I've just spoken is about is a subjective test: the intention to cause - that the course of conduct will coerce or control the victim. 

The prosecution also needs to satisfy a reasonable person test. And so, this is that a reasonable person would consider that the course of conduct would cause the victim to fear violence would be used against them, or that the conduct would have an adverse impact on that person's day-to-day activities. 

Importantly, the prosecution doesn't have to prove those impacts - just that the reasonable person would think that it would have that impact. I suggest to you that it is most likely that the prosecution will seek to lead that evidence from victim-survivors because it's going to help a more successful prosecution. but they don't have to do so. 

Hopefully you can see, by talking about all those bits that the pros- like, it's like a big puzzle. All these bits that the prosecution has to prove have to come together in order to be able to satisfy the offence. So, it's going to be quite difficult to do so. It's not retrospective, so this means that the prosecution can only charge behaviours that have happened from the 1st of July onwards. And so, that's why we'll also see a bit of a slow uptake. Also available to the defendant is a defence. So the defendant can raise a defence that their behaviour was reasonable in all circumstances. And, the most common example that's given for this is there might be someone- one person in the relationship might control all of the money, because the other person has an addiction to gambling. And so, that would be reasonable in all the circumstances, and that's the example that's usually given. 

If found guilty of the offence, the defendant is liable to up to seven years in prison, however, it's likely that most of these cases will be dealt with in the Local Court. This has been the experience in Scotland - that it's been dealt with at the lower court level. In the Local Court, the highest penalty you can impose is two years and we do think that's where the vast bulk of cases are going to be dealt with. 

So, hopefully you can see that this has been very narrowly drafted. And, one of the reasons why it's so narrowly drafted – so, it's restriction to adults, it's restriction to intimate partner relationships, it's restriction to the mental element of intent - are all designed to address the concerns that I mentioned on the previous slide: that the government was attempting to balance, to put together, to test out this new offence. So, I'm going to turn to a couple of these issues in more detail.

So, the first one is the requirement of intent. As I've said this is- and its specific intent so it's a really high mental element so those of you that have done criminal law you'll understand that this is a really high mental element to satisfy. It's worth noting that overseas jurisdictions have included a lesser mental element. So, in England and Wales the prosecution need to prove that the defendant knew or ought to have known that the behaviour would have the serious effect on the victim, and in Scotland its recklessness. Recklessness was included in the exposure bill that New South Wales government released during its consultation phase, but it was removed by the time the bill was introduced to Parliament, and largely around those questions of overreach, misidentification, and over-incarceration. So, for those of you that haven't done criminal law, one of the benefits of recklessness - if you want to think about recklessness as a mental element - recklessness would involve the prosecution proving that the defendant foresaw the possibility that their behaviour would have the prohibited outcome. So, would coerce or control the victim, and did it anyway. So, you can see that it would enable a greater number of people to come in. I would like to also get you to start to think about the fact that, whether or not requiring the mental element intent actually fits with what we know about perpetrators of violence. And so, even though the sociological literature does talk about perpetrators intending their behaviour to control, I'd like to suggest to you that intent in the sociological literature is very different to what intent means in a law, and they don't necessarily sit together. And what we see with perpetrators is a lot of deflection of their behaviour, denial, minimisation, and excuses. And recklessness would enable us to capture some of that, so, that's one of the things to watch. 

Should the offence cover other relationships? So, one of the reasons why the New South Wales government restricted it to intimate relationships, other than the reasons I mentioned before, is also because all the evidence that we have available really points to the role of coercive control in intimate partner relationships. So, I sat on the New South Wales Domestic Violence Death Review Team, and the data from the New South Wales Domestic Violence Death Review Team was used a lot in these debates and discussions because the team had found that, almost all of the homicides that it investigated, involved coercive control. I'd like to suggest it did because they look at domestic violence cases and that's what they involve. But that's one of the reasons why. We have an evidence base for the inclusion of intimate partner relationships and we don't necessarily have the evidence base for other relationships. This approach was supported by a number of stakeholders, like New South Wales Legal Aid, the Aboriginal legal service. However, there are a number of stakeholders that would have preferred a wider approach. So, domestic violence groups, cultural linguistically diverse groups, Aboriginal and Torres Strait Islander groups, and disability groups. And one of the things that they are concerned about is that it creates a hierarchy of relationships. New South Wales has long had a very broad approach to domestic relationships in the domestic violence area, and suddenly we have the fact that you might have a criminal offence if it's in an intimate partner relationship, but in another relationship- so, let's say an adult-child against a parent or a carer against a person with a disability - it's going to be okay there, but it's not going to be okay in intimate partner relationships. And there's a question about just what message that sends. 

Finally, I just wanted to talk a bit about the risk of misidentification. As I have said this, was one of the main concerns about reform in this area. Misidentification comes about for a range of different reasons. So, one of the main reasons why it comes about is because of the incident framework of the traditional criminal law. So, the police might go to an incident - there's been an assault - she admits to having assaulted the partner, but it's seen out of context and not this bigger picture of who is the primary perpetrator of violence in the relationship. It also happens because perpetrators can be very charming and, when the police arrive, they're the ones that are calm and collected, and the victim is often quite hysterical, often being abusive to the police as well. And so, they can be criminalised through that kind of process. And there's also simply the misuse, I guess legal systems abuse, that some perpetrators engaged with. So, there's a couple of things I want to say about this. The first thing is that the design of these coercive control offences is actually designed to avoid misidentification. So, because they're concerned with context, they should actually avoid misidentification because we're looking at a pattern of behaviour - we're trying to do those things. And certainly- and they're asking about whether - they're not just asking about whether the behaviours have happened, they're asking about whether the behaviour has coerced or controlled the victim. So, they're doing more than just ‘did the behaviour happen?’. The evidence from overseas would appear positive in this area. There appears to have been very little misidentification in the UK and Ireland. 

The second thing I want to say about this is, because the offence has been so narrowly drafted to avoid misidentification, I think we're potentially missing the flip side which is identification. So, again, in the domestic violence homicide work that I do, one of the continuing problems is victims approaching the police - reporting domestic violence to the police - and the police saying, “Oh no, nothing's happened - we can't do anything”, and they get turned away. So, they're not being being identified as a victim worthy of the attention of the law. I think this remains as an issue and the narrow drafting potentially compounds it as an issue. So, for example, one of the homicides that was spoken about in this context was John Edwards who killed his two children. Olga Edwards had gone to the police a number of times, reporting stalking and intimidation, as well as abuse against her children, and the police either didn't record it appropriately or they made assumptions about her - that she appeared too strong to be- she didn't appear to be fearful and so it couldn't have been stalking. So, a lot of the problems that we see around misidentification and the failure to identify. 

Finally on this point, I just wanted to also emphasize that there's been a lot of attention around misidentification in relation to the coercive control offence, and we need to remember that misidentification is a real issue in all the other criminal offenses that are available, and for AVOs, and we mustn't lose sight of that. On a personal level, I also I particularly don't like the term ‘misidentification’ because it suggests a mistake, and I think it means that we avoid, sort of, asking some of the questions about the system and why it's entrenched within the system and institutional responses. 

A critical feature of the act is the statutory review provision. So, when the bill was going through Parliament, one of the things that various advocacy groups were very successful in was getting a detailed statutory review provision. So statutory review provisions are incredibly common but they're usually quite banal. They usually just say, you know, in 2 years' time we'll check and see if the objectives of the act are still met; this is not like this. It is incredibly detailed - it goes through a number of things, so they have to- and they have to look at- the government has to report on these things. So, whether recklessness should be included, whether other relationships should be included, the impact on Aboriginal people, cultural and linguistically diverse people, LGBTQI people, whether victims- whether the penalty should be increased, whether there's been postcode justice - so like, different things happening across the states, as well as a number of other things that the government has to look at. So, it's incredibly comprehensive. In addition, it's not just once - they have to do it three times over six years. So, New South Wales is actually going to be in a position- a better position than a whole lot of other jurisdictions to know much more about how this law reform works in practice, and how it works for different groups of people. So, the findings from that will be incredibly important. There has- as you know, I'm concerned about implementation, I'm not going to go into this in a lot of detail, but there has been a lot of work around implementation in New South Wales. I talked about the fact that there's been this, like, more than 18-month period; what we saw during this time was a coercive control implementation evaluation task force was established to oversee all of the work. There were 10 sector specific reference groups that, sort of, sat under this task force. I'm going to admit at this point, and confess, that I'm an observer on one of those groups, which is the domestic violence sector reference group. If you're interested, you can see that the task force has issued three reports already which detail the work that's been undertaken to date, like before- actually, detailed all the work that had been undertaken before the 1st of July. And you can see that a lot of work had taken place. I personally would have liked a little bit more about the content of the training, not just that the training had happened. But there's more detail around some groups than others within those reports and, I guess, I would have also liked a broader fo- the work of this task force, for obvious reasons, and it's created by statute, is focused on the offense - I would have liked a wider focus for, perhaps, obvious reasons. 

So, in terms of what’s happened since the 1st of July, the Bureau of Crime Statistics and Research, known as BOCSAR, has been engaged to do some of the quantitative monitoring of the offence and, at the beginning of this month, they released their first, sort of, snapshot report. It just reports on the first month, so it's actually just reporting on what happened in July. Police have recorded 23 coercive control incidents and there's one charge in progress; a man in the Riverina. The recorded offences show that, on average, there's 3.3 different types of behaviours being recorded by the police – so, threats, intimidation, stalking - I forget what else. But there's- so they’re reporting more than one, which is a good thing to see, and most of the victims are women, which would suggest that misidentification isn't taking place. You can see that usage has been low, but this is not unanticipated – like, it's not a retrospective offence - we're asking the police to do something particularly different. So that's challenging to them. Although even- even with- giving that sort of qualifying thing, in the sense that I understand - I am also a little bit surprised that only 23 incidents have been recorded if we think that coercive control is, like, the core feature of domestic violence, that seems particularly low to me. The slow optake does reflect what we've seen overseas. So, if you look at data from England and Wales and Scotland, it is a very slow progression that we see in terms of the use of the offence. They're only just sort of seeing that kind of greater use. England and Wales remains a bit patchy but they didn't, kind of, have dedicated training the way some of the other jurisdictions did, but it still remains a really small proportion of domestic violence offences. So, in England and Wales, it's 3% of domestic violence offences generally, 6% in Scotland. And it's- it's also kind of understandable, in that sense, that we would expect that police may still, like, charge your standard, ordinary offences rather than wait until they package. And, of course, that's what victims would want as well - they wouldn't want the police to necessarily wait.

I just wanted to talk a little bit about some things that we're seeing from the UK, and I'm just going to do this in such a broad-brush. So, there's a growing body of research out of the UK that tells us a little bit about how these offences are operating. So, some of it's positive and some of it, I guess, things- I guess more negative things that we might expect. So, one of the things is despite- and I guess it reminds us that just having a new law isn't a panacea - it's not going to change the way in which legal actors and the legal system responds to domestic violence. So, one of the first things - and I guess one of the things that's really important to me - is that we need to- we can't just introduce laws without paying attention to the criminal justice process. The criminal justice process many victims experience as traumatic and sometimes as harmful as what took place to them in the first place. For me, it was really striking that the Joint Select Committee that did recommend a criminal offence didn't make any recommendations about changing the criminal justice process at all. So, one of the first studies out of Scotland, which is seen as the gold standard offence - people might have questions about that - but is seen as the best example. The study that happened there as part of their statutory review process - it was striking to me that the victim-survivors that participated in the survey talked about the criminal justice system process more. Like, the delays in the system, the experience of cross-examination, that it didn't make them feel safer. So, some of those- those problems that have been longstanding remain, I guess, is what I'm trying to say. There've also- some of the recent English and Welsh Studies have found that we still see police relying on some stereotypes about what they think or how they think genuine victims respond. That might be of concern and might be something to watch. I've got some other things there that are kind of on the more negative side. On the positive side - and I realize I haven't- I meant to put the one that's about missed opportunities on the other side - some research by Charlotte Barlow, where they looked at police, like, police records of offences, found that police actually were recording evidence about coercive control, even if they weren't charging it. So, there's these missed opportunities that tell us that training and education might help. We've seen in the UK, inclusion of behaviors that we wouldn't have seen in a criminal offence before. So, particularly around financial and economic abuse. Key professionals are talking about the educative function it's serving for them in terms of their work - and that's a positive thing. And, as I mentioned, misidentification hasn't, kind of, emerged as a problem there. But, I do caution that, of course, their jurisdictions are completely different to ours and do not have the experience of colonisation that we have here that might suggest that misidentification might play out a little bit differently. 

So, sort of finishing up, I kind of- I just want to return to- I know I've been emphas- I've probably been hammering it into the conversation- I want to return to that problem of implementation, because this is the major issue; it's where laws experienced by people, victims and perpetrators, and all the legal actors. And we've had enough experience with law reform – so, whether it's around domestic and family violence, like this, or whether it's around sexual assault and the affirmative consent laws, or whether it's around sexual harassment - we've had enough experience with law reform, that tries to get to gender-based harms, to know that the laws don't necessarily deliver. And we've got this continuing challenge around implementation - that people that actually do the work. So, New South Wales has put considerable resources into this area and, you know, the time that they spent, and I think that should be valued and commended. But I think that there's still some ongoing issues that, like, I particularly want to watch as I watch the offence roll out and be practiced. And that's mainly because implementation- I think we need to remember that implementation doesn't happen, or didn't happen, on the 1st of July; it's actually an ongoing process. It's a continuum. It's something that happens every day that we need to be attentive to. So, some of the things I'm concerned about is, I guess, whether or not people have a good understanding of what coercive control is in order to action the offence well - and I still have some questions about that. I have some questions around the rhetoric of saving lives that, sort of, framed all of this law reform, because I think there's a more prosaic and every-day-experience of coercive control that might be missed. I also think it, kind of, overpromises what a criminal offence can on its- on its own do in terms of saving lives. And- I think there was one more thing I wanted to say at the end of that. And, I guess, also just returning to the problem of misidentification and, I guess, the narrow approach that New South Wales has taken, is- I have a concern that New South Wales thinks that some of those things around misidentification and overincarceration are amenable to drafting solutions, rather than that, sort of, more complex question of cultural and systems change that also needs to be addressed. So, just if you're interested in my musings in more detail, these are a few things that I've written over- since 2020 that kind of develop these thoughts over time. So, the first- well, the first one is before we, sort of, got to this stage in New South Wales and Australia. The second is a critical examination of the law reform processes that ended up recommending criminalisation. And the final one, which is coming out soon, is, I guess, more detail about the actual approach that was adopted in New South Wales in the end. So, thank you. 

Anthea:

Thank you so much, Jane. I'm just about to hand over to Chloe to moderate our questions and discussion time but, before I did, I just wanted to emphasise how lucky we are to have had you present to us, and the richness of the presentation. And Jane is a national and international expert in this space and- which she's given us so much to reflect upon and discuss. And, yeah, it's been a privilege to hear your research, Jane. So, I'll hand over to Chloe and open it up for discussion. 

Chloe:

Yeah, I just wanted to echo what Anthea said; that was excellent, thank you so much, Jane. Does anyone have any questions for Jane? Feel free to pop them in the chat or pop your hand up.

Tracey:

I can't get my hand function to work. I don't think it's a tricky one- and apologize if- apologies if you did talk about this: why is the Scottish offence a gold standard? What is the gold stand- standard aspect about it?

Jane: 

So, it's described as a gold standard- although, I did see one of the Scottish prosecutors- I saw a webinar with a Scottish prosecutor and she said, “Oh it's not a gold standard- far from it”. One of the reasons why it's seen as so good was the amount of work that they did beforehand in consultation. So, they had years of development of talking about coercive control, Evan Stark came and spoke to them, they already had a, kind of, gendered framework of understanding of domestic abuse. So, they call it domestic abuse in their jurisdiction. They didn't call the offense domestic- oh sorry- they didn't call the offence ‘coercive control’, they called it ‘domestic abuse’ which was familiar to the jurisdiction. The other thing that I really like about the Scottish offence is that it doesn't list behaviours because, I think, if you list the behaviours you get caught up in the behaviours, rather than how they function. And instead, they, kind of, talk about the impacts. So, did it isolate? Did it make someone more dependent? Did it make them subordinate? And they used the language of victim-survivors in that drafting, and so, that's kind of why it's seen as the gold standard. 

Chloe: 

Thanks, Tracey. We've got a few questions coming through in the chat. Lily's got her hand up, as well, so if you wanted to ask Lily.

Lily: 

Hi, that was really good. I just wanted to ask because I did an essay about the- coer- I think it was the Sexual Consent Reform Bill - and I can- I compared it to Scotland's Coercive Control Bill. And a lot of- I'm pretty sure the issue in Scotland as well was police endorsing, like, a rape myth- or that it doesn't really apply in, like, marriage. And the same thing was comparable in Australia and New South Wales. And the police force wasn't very adequate. How do you think that would change? Because I know that they've done some education, but there was still a high endorsement of that coercive control- or, like, “rape and stuff doesn't happen in intimate relationships”. How do you reckon that would play out?

Jane: 

Look, Lily, that is an excellent question. And I actually think it's something to watch. So, one of the most interesting studies I've read is by Andy Myhill and colleagues – so, M-Y-H-I-L-L - in the UK. And one of the things they got to do in their research- so, this is around the coercive control offence in England and Wales - they got to ride along with the police. So, they went around with the police when the police were called out to incidents. Like, it's really unusual to be able to get ethics approval to do this. They got- went out to incidents and they watched the police engaging with the victim-survivor and the alleged offender, and they came back to the police station with the police and watched them do some of those things. So, one of the disturbing things out of that study was the continuation of some of these myths around victims in the policing work. So, for example, one of the incidents the police attended, the alleged victim was complaining about being called multiple times and harassed by the alleged offender and, indeed, he calls her a number of times when the police are there. And the police came back to the police station and spoke to the researchers and said, “Oh no, she seemed too strong to be a victim of coercive control so that wasn't a genuine one”. Another example in that study was where a woman was complaining about sexual coercion in her relationship and, again, the police said, “Oh, that's just a normal marital dispute around sex”. So, we need to continue to fight these myths. The law itself isn't going to- like, just having the law isn't necessarily going to change behaviours unless we really embed and challenge this education and training over and over again. I would love to see some research like that happen here to see whether we see the same things taking place. 

Lily:

Thank you. 

Chloe: 

We have some questions in the chat so, “What are the implications for family lawyers who give aggressive advice? So, for example, advice to drain shared bank accounts or take assets because this reinforces the coercive control experienced by a person, even if they are not representing the victim.” That's from Isabella. 

Jane:

Sorry, I'm just going to read it. Look, it feels like, Isabella, that's going into another one of my research areas. But I think there's big issues for lawyers to think about- so I think lawyers need to be trained around coercive control. It's something that doesn't happen at law school - maybe you might get something on it if you do family law, but not necessarily otherwise - and lawyers need to be aware of the way in which they might be used by perpetrators in order to engage in abusive behaviours. So, for example, doing multiple legal applications - unmeritorious legal applications. But then, you've also given an example of lawyers themselves engaging in that behaviour. So, some victims- so a study I did with Tracy, I remember one of the victims spoke about the way in which some- it would appear- or at least this is what they think, that alleged- or perpetrators choose lawyers that are like them. So, they choose lawyers that are a bit more aggressive, that would do that kind of behaviour. I think there's a whole big area of research and practice that needs to happen around whether or not we think that's ethical legal practice. So, I'm not really answering your question other than saying it is a major area of concern.

Isabella:

Thanks so much, Jane. 

Jane: 

That's alright.

Chloe: 

Yep, I think there's another long one in here. So, “The federal government has spoken a lot about ending violence against women and children, and yesterday they announced a program targeting teenage boys who are at risk of perpetrating domestic violence. Do you have any thoughts on the current wider project to educate and engage teenage boys in Australia before they become, you know- or can become violent men? Are we doing a good job?”.

Jane: 

So, Donny, that's, kind of- it's a little bit outside my area of expertise. I think it is really good to see programs starting to be targeted at men and boys and young men. So, in that sense, I really welcome the federal government's funding and approach around that. Work around primary prevention, or early intervention, needs to continue and there's been some discussion- and, I mean, it comes up in the homicide work I do as well - is that there are a number of children and young people who have grown up in violent households. Not all of them will go on to use violence in their own relationships, but a number of them will, and we do not do much about - or we almost do nothing - around addressing that sort of trauma experiences to counter that, to prevent them from going on to do that in their relationships. I have teenage sons; I'm pretty interested in the education that that they might get around healthy relationships because it doesn't- I mean, happening at home is a key part of it - but also their school and their peers and all of those things. So, I'm not really answering other than saying I welcome it. 

Chloe:

I think we have time for one more question. So, “What's your opinion on coercive control law in developing nations and how will this impact them if they were to adopt it?”.

Jane: 

That is probably a question beyond- beyond my knowledge. I think one of the things that we need to be interested in - and it has also been a question for Australia - is the transportation of law reform ideas across the world without asking about how and whether they're appropriate to different jurisdictions. And so, Australia has been really interested in what's happened in the UK and, I guess, there's questions here about how well has it been adapted to the particular issues that we have in our jurisdiction, such as the impact of colonisation, the way we know the criminal legal system works around- against Indigenous peoples and other marginalised groups. And so, I'd just be cautious about always thinking that the transportation of law reform is a good idea without investigating it in more detail. We also see, through work with cultural and linguistically diverse groups, that coercive control plays out in different ways. We know that there's different forms of behaviour that are incredibly offensive that might not be offensive for the dominant White population. And so, we need to make sure that the criminal law doesn't ignore that and also is able to capture it. And, I guess, that's one of the concerns around the narrow- not including other relatives - is that, in some cultural groups, violence is experienced from other family member, even if it's driven by the intimate partner. And so, there's just other things to think about more widely. 

Chloe: 

Awesome. Yep, I think that answers the question about how this can lead to the further overincarceration of Indigenous people, so, excellent. I'll just say one final thank you. So, on behalf of the UTS faculty of law and the UTS student society, I would like to express our sincere gratitude to Associate Professor Jane Wangmann for generously sharing her time, expertise, and knowledge with us this evening. We are so incredibly fortunate to have gained your insights and, I know that I speak on behalf of all attendees when I say that your presentation has inspired a deeper reflection on how the law can be used as a tool to address the issue of coercive control and domestic violence. Thank you for your dedication and advocacy for greater diversity in the legal field, and for imparting your knowledge to us today. I would also just like to thank Anthea, Crystal, Sivaan, Bec, and Georgia, together with the entirety of the Brennan  social justice team, for helping administrate tonight's talk. To all of our attendees, your participation is invaluable, and we hope that today's discussion will serve as a catalyst for further engagement and reflection in social justice, and the Brennan program. A final reminder that you will all receive five ROJ points for attending tonight's event. Our next social justice talk is on Thursday October the 17th at 6 p.m. and is titled ‘Treaty Now’. You can register for this via the Career Hub. Also, our Public Speaking Society and UTS Law Students Society Grand Final is on the 8th of October, and everyone is more than welcome to come watch. Once again, thank you, Jane, for your time tonight, and thank you to everyone for attending. 

Jane:

Thank you very much.