I INTRODUCTION

While NSW has employed protective measures such as Apprehended Domestic Violence Orders (ADVOs), the Crimes (Domestic and Personal Violence) and Other Legislation Amendment Act 2024 (NSW) (henceforth “the Act”) significantly deepen the preventative orientation of domestic violence law.[1] [2] With the most recent report of the Domestic Violence Death Review Team highlighting that almost a third of homicides in NSW from 2000-2022 were domestic violence related, the reform seeks to strengthen the State’s capacity to prevent further domestic abuse.[3] Passed in September 2024 and fully commenced on 29 September 2025, the Act, among other things, implements the Serious Domestic Abuse Prevention Order Scheme (SDAPO). Modelled on the serious crime prevention orders created to combat organised crime, SDAPO’s allow courts to impose any conditions they deem necessary to prevent the use of violence by perpetrators of domestic abuse.[4] [5] However, the expansion of preventative power raises difficult questions about the continued role of proportionality as a limiting principle and the adequacy of procedural safeguards within the civil framework.[6] Although the reform meaningfully strengthens the law’s capacity to recognise and respond to the patterned nature of domestic violence and technology-facilitated abuse, the assumption that increasing maximum penalties will meaningfully deter repeated further non-compliance with ADVO’s is less certain.

II SUPPORTING ARGUMENTS

A significant aspect of the reform is that it recognises repeated breaches of an ADVO as an offence itself. Under s 14(1C) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), as amended in 2024, where an ADVO is breached three times within a 28-day period, the conduct is no longer treated as a series of isolated contraventions but constitutes a distinct aggravated offence punishable by 150 penalty units and up to five years’ imprisonment.[7] By recognising repeated breaches as a distinct aggravated offence, the reform enhances secondary intervention by enabling the law to respond to the patterned and coercive nature of ongoing non-compliance with protective orders, which itself contributes to the victim’s continued harm.

The Act expands the definition of “stalking” in s8 to include the use of technology to monitor or track a person’s activities, communications or movements, whether or not the person is approached or contacted. By expressly encompassing technology-facilitated monitoring within the definition of stalking, the legislature reduces the scope for interpretive exclusion of digital conduct. As a result, the evidentiary foundation upon which NSW courts may recognise technology-based coercion and grant protective or preventative orders is strengthened.

III CRITICISMS

The proportionality principle requires that a restriction imposed by the State go no further than is reasonably necessary to achieve their legitimate protective purpose.[8] Section 87B(1)(c) of the Act states that the making of an SDAPO hinges on the appropriate court’s satisfaction that there are reasonable grounds to believe that the making of the order would protect the victim by preventing the person from engaging in domestic abuse.[9] Section 87D(2) of the Act states that an SDAPO must not exceed a 5-year period.[10] However, under s87D(3) the appropriate court is not prevented from making a second or subsequent SDAPO against the same person.[11] The Act amends s11(5)(c) of the Firearms Act 1996 (NSW) to prevent any person who not only is subject to a SDAPO, but a person who has been at any time within 10 years before the application for a Firearms Licence from receiving a Firearms Licence.[12] It similarly amends s10(3)(b) of the Weapons Prohibition Act 1998 (NSW) to prevent any person who is not only subject to an SDAPO, but a person who has been subject to an SDAPO at any time within 10 years before the application for a permit from being issued a permit.[13] Accordingly, even where the appropriate court determines that a further SDAPO is unnecessary for the protection of the victim, the person remains subject to the same firearms disqualification as an individual currently assessed by the court as posing an ongoing risk. By declining to renew an SDAPO, the court has effectively determined that ongoing preventative supervision is not required to protect relevant persons. A continued firearms disqualification nevertheless attributes to the individual a level of risk the court has not endorsed, thereby imposing a restriction that arguably goes beyond what is reasonably necessary to achieve its protective purpose. Therefore, the broader implication of accepting this approach is that preventative legislation may gradually shift from preventative supervision toward fixed, status-based consequences that operate independently of contemporaneous judicial assessment, weakening proportionality as a limiting principle on the preventative restrictions imposed on individuals.

Additionally, the strengthened recognition of technology-based coercion must be considered alongside the procedural framework within which such allegations are adjudicated. Section 87J of Division 3 of the Act states that proceedings on an application for an SDAPO are not criminal.[14] Therefore, the procedural fairness considerations articulated in Dietrich v the Queen are not automatically engaged.[15] The High Court found in Dietrich that when an accused, through no fault of their own, does not have legal representation when charged with a serious offence, a judge may order the trial be stayed until legal representation is available to ensure fairness.[16] As a result, while respondents may seek legal representation, they are not assisted by Dieterich.[17] As Dawson J stated, “it is only realistic to recognize that an accused who is unrepresented is ordinarily at a disadvantage because of his lack of representation”. [18] Notably, allegations of technology-facilitated monitoring may rely on digital artefacts such as metadata, location logs, IP address records or shared account activity, the attribution of which is not always self-evident. Meaningful rebuttal may therefore depend upon the capacity of the respondent to interpret and contextualise digital data, a capacity more readily available to those with legal representation. The concerning implication is that where technological evidence underpins allegations of ongoing risk, differences in representation may influence how that evidence is evaluated. Preventative outcomes may therefore, at least in part, turn on disparities in legal representation.

Finally, the enhancement of penalties for breaching an ADVO is unlikely to correlate to more effectively protecting victims from further domestic abuse. This is supported by the NSW Bureau of Crime Statistics director Don Weatherburn who stated that “the question most offenders are asking is ‘am I going to get caught?’ they’re not sitting down and thinking, well if I am caught, will I go to jail and if I do, how long will I go for?”.[19] Breaches of an ADVO depend largely on victim and witness reporting.  However, as stated by Community Legal Centres NSW, “police data fails to capture increase in domestic violence”.[20] The underreporting of domestic abuse from victims arises from factors such as a fear of not being believed, judged or criticised and fear of repercussions such as the violence escalating.  Additionally, domestic abuse is found to happen behind closed doors, decreasing the likelihood of a third party witnessing the abuse and reporting it to the police.[21] This underreporting may mean it is unlikely for perpetrators to be deterred from breaching ADVO’s as they do not believe they will be detected and therefore punished. The implication of this is that the harsher penalties for ADVO breaches will not have their desired effect of protecting victims from further domestic abuse as penalties cannot occur without ADVO breaches being reported.

IV CONCLUSION

In summation, this reform represents a significant expansion of preventative domestic violence law in NSW. Although the reform risks weakening proportionality as a limiting principle and giving rise to preventative outcomes that turn on disparities in representation rather than purely on judicial assessments of risk; by escalating responses to repeated breaches and recognising technology-facilitated coercion, it strengthens the State’s capacity for secondary intervention. Ultimately, while careful scrutiny of preventative power remains essential, the reform reflects a clear and necessary commitment to strengthening legal protections for victim-survivors of domestic violence.

V REFERENCES

[1] Crimes (Domestic and Personal Violence) Act 2007 (NSW) Part 4. (‘The Act’)

[2] Crimes (Domestic Violence) Amendment Act 1982 (NSW).

[3] New South Wales, Parliamentary Debates, Legislative Assembly, 17 September 2024 (Michael Daley, Attorney – General) (Second Reading Speech).

[4]  Ms Felicity Wilson, Crimes (Domestic and Personal Violence) & Other Legislation Amendment Bill 2024, Record of Proceedings, NSW Legislative Assembly, 17 September 2024. 

[5] Karl Hoerr, New Court Orders Aimed at Preventing Domestic Violence Law Society Journal (Online 30 September 2025).

[6] The Act (n 1) s87J

[7] Crimes (Domestic and Personal Violence) Act 2007 (NSW).

[8] Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (Report No. 129, 2016) Ch2 [2.62] – [2.82]. 

[9] The Act (n 1) s87B(1)(c).

[10] The Act (n 1) s87D(2).

[11] Ibid s87D(3).

[12] Firearms Act 1996 (NSW) s11(5)(c).

[13] Weapons Prohibition Act 1998 (NSW) s10(3)(b).

[14] The Act (n 1) s87J Div 3.

[15] Dietrich v the Queen [1992] HCA 57.

[16] Rule of Law Education Centre, Dietrich v The Queen (Case Study, Rule of Law Education Centre).

[17] Ibid.

[18] Dietrich v the Queen [1992] HCA 57, Dawson J, (Paragraph 16).

[19] Foschia, L, Tough Prison Terms don’t reduce crime: NSW Study, ABC News, 13 March 2012.

[20] Community Legal Centres NSW, Tip of the iceberg: Frontline Workers say Police Data fails to capture increase in Domestic Violence (Online, 30 June 2021).

[21] Australian Institute of Health and Welfare, How People Respond to Family, Domestic and Sexual Violence (Web Report, AIHW, 2024).