The NSW Government has introduced new legislation aimed at closing a legal loophole that has, in some cases, allowed perpetrators of intimate partner violence to avoid break and enter charges if they remain listed on a lease or hold an ownership interest in a property.
Under the proposed changes, individuals who no longer live at a premises will be able to be prosecuted for breaking and entering, even if their name still appears on a lease or they retain an equitable interest. The reform applies where a person, no longer an occupant, enters a property with the intention of committing a personal violence offence against a current or former partner.
The move follows the 2023 High Court decision in BA v The King, which highlighted a gap in the law after a defendant who had moved out of a shared home could not be charged with break and enter, despite returning to the property and committing an assault. That case prompted scrutiny of how occupancy and legal rights intersect in domestic violence matters.
The updated legislation also clarifies that a person will not be considered an occupant if a court order, such as an Apprehended Violence Order, bail condition or parole requirement, prevents them from residing at the address or requires them to live elsewhere.
The Government says the changes have been developed in consultation with legal stakeholders and advocates, with safeguards to ensure victim survivors are not disadvantaged. This includes those who may need to return to a former home to retrieve personal belongings.
The reform adds to a broader set of measures introduced by the Minns Labor Government to address domestic and family violence. These include stricter bail laws for offenders, electronic monitoring by Corrective Services NSW for those released on bail, tougher penalties for breaches of Apprehended Domestic Violence Orders, and the introduction of Serious Domestic Abuse Prevention Orders to increase oversight of high-risk offenders.
The Staying Home Leaving Violence program is also part of the Government’s approach, supporting victim survivors to remain safely in their communities by removing the perpetrator from the family home.
Attorney General Michael Daley said the legislation addresses a gap that has had real-world consequences, noting that perpetrators should not be able to rely on technicalities to avoid accountability when entering a property unlawfully.
Minister for the Prevention of Domestic Violence and Sexual Assault Jodie Harrison said the changes are intended to strengthen protections for victim survivors and ensure the law reflects their lived experiences, particularly where individuals return to homes they once shared with an abusive partner.
The reforms are expected to proceed through NSW Parliament, where they will be considered alongside existing efforts to strengthen the legal and practical response to domestic and family violence across the state.
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