NSW’s domestic violence laws have undergone fundamental reform. The Crimes (Domestic and Personal Violence) and Other Legislation Amendment Bill 2026 introduces some of the toughest protections for domestic violence victims in the state’s history, alongside significantly tougher constraints on those accused of serious domestic violence offences. If you are facing charges, a key change now works against you from the moment of arrest. If you are a victim, new legal tools exist to protect you that did not exist six months ago.
The Reversed Bail Presumption: What It Means for Those Charged?
Australia’s traditional bail framework operates on a fundamental principle: a person is innocent until proven guilty. Under the existing common law, most accused persons are entitled to be released on bail unless the prosecution demonstrates ‘show cause’, that is, reasons why detention is warranted.
The 2026 amendments reverse this presumption for a defined class of serious domestic violence offences. A person charged with a serious domestic violence offence (defined as offences carrying a maximum penalty of 14 years or more, in the context of intimate partner violence) must now show cause why they should not be detained in custody until their case is determined. The burden shifts entirely to the accused.
This is not a marginal change in legal procedure. For those charged with serious domestic violence offences, the default outcome at a bail hearing is now remand in custody, not release. The accused must affirmatively persuade the court that their release on conditions is justified. This ‘show cause’ test applies to the same category of offences as murder, terrorism, and serious drug trafficking charges.
Practical implication: At first appearance, any person facing a serious domestic violence charge should expect the court to refuse bail unless they can present compelling evidence, such as employment letters, character references, residential ties, and a realistic bail plan, supporting their release.
Electronic Monitoring: A Default Condition for Bailed Accused
Where a court does grant bail to a person charged with a serious domestic violence offence, the law now imposes electronic monitoring as a default bail condition. This is not a discretionary enhancement; it is a statutory expectation.
Electronic monitoring by Corrective Services NSW involves ankle bracelet technology, GPS tracking, and potentially enforced curfew conditions. Breaching monitoring conditions can result in immediate remand pending trial, meaning bail is revoked and the person is taken into custody without a further hearing.
Victim protection benefit: Real-time monitoring means that if a monitored person approaches an exclusion zone, such as the victim’s home, workplace, or a defined safe location, police are notified in advance. This provides an opportunity for police to intervene before contact is made, rather than responding after a breach has occurred.
Serious Domestic Abuse Prevention Orders (SDAPOs): Now in Force
The NSW Government has introduced Serious Domestic Abuse Prevention Orders (SDAPOs) as a standalone civil protection regime. Unlike traditional Apprehended Domestic Violence Orders (ADVOs), which protect specific individuals, SDAPOs target the highest-risk perpetrators and protect a far broader class of persons, including potential future intimate partners.
Who can be subject to an SDAPO?
The Police Commissioner or Director of Public Prosecutions can apply for an SDAPO where a person has:
(1) been convicted of two or more domestic violence offences carrying a maximum penalty of 7 years imprisonment or more, or
(2) been charged with a serious domestic violence offence against a relative or intimate partner, regardless of whether they have been acquitted or their conviction has been quashed.
What conditions can be imposed?
The court may impose any conditions it considers necessary to prevent the person engaging in domestic abuse. These include: mandatory reporting to a police station at specified times; notification to police of any dating profiles or entry into a new intimate relationship; restrictions on social media and dating applications; prohibitions on possessing or using tracking devices; restrictions on contact with specified persons; and requirements to provide police with passwords or access to communication devices.
Duration and breach penalties
An SDAPO lasts up to 5 years. Breaching an SDAPO is a criminal offence carrying a maximum penalty of 5 years imprisonment and/or a $33,000 fine. A court can issue a second or subsequent SDAPO, effectively extending the supervision period.
Status: SDAPOs commenced on 29 September 2025 and are now operational.
The New Covert Stalking and Tracking Device Offence
One of the most significant practical changes in the 2026 legislation addresses a critical gap in existing stalking law: covert surveillance using tracking technology.
Under existing stalking offences, the victim must be aware of the conduct and must fear physical or mental harm. A perpetrator who successfully concealed their surveillance, placing an AirTag in a victim’s bag, installing a hidden GPS tracker on a vehicle, or using covert location-tracking apps on a partner’s phone, may have escaped liability entirely. The concealment prevented the victim from experiencing the fear that the law requires.
The 2026 law closes this gap. It is now a criminal offence to covertly monitor a person using a tracking device where that person is unaware they are being monitored. Crucially, no awareness or fear on the victim’s part is required — the concealment itself is central to the offence.
The offence covers: AirTags and similar Apple tracking devices; GPS devices; phone location-sharing apps used without consent; and any other tracking technology deployed without a person’s knowledge or consent.
The legislation also creates two related offences: (1) directing a third party to stalk on someone’s behalf — for example, using a friend or family member to track and report on a victim’s movements; and (2) promoting the unlawful use of surveillance devices, such as private investigators or ‘spy stores’ advertising illegal tracking services.
Why this matters: Between 2010 and 2023, 82% of people charged by NSW Police with unlawfully using a tracking device were committing domestic violence offences. These laws are a direct response to that data and recognise tracking as a weapon used to control, intimidate, and monitor intimate partners.
Strengthened Penalties for Serious, Repeated ADVO Breaches
The 2026 amendments increase penalties for a pattern of deliberate, serious, and repeated breaches of an Apprehended Domestic Violence Order (ADVO). A single isolated breach attracts a lower penalty than a pattern of non-compliance, reflecting the seriousness of ongoing disregard for court protection orders.
This change aims to ensure that perpetrators who systematically ignore court orders face escalating consequences, not just repeated warnings or minor penalties.
If You Have Been Charged: What Should You Do Immediately?
The reversed bail presumption makes early and specialist legal advice more critical than ever. The difference between remand and bail pending trial can mean months or years of lost freedom, lost employment, and separation from family. Your first bail hearing is your most important opportunity to present the strongest possible case for release on conditions.
At your bail hearing, the court will assess your circumstances, your proposed conditions, your employment and residential ties, your community connections, and whether you pose an unacceptable risk of re-offending or interfering with witnesses. A skilled criminal defence lawyer will:
- Prepare detailed evidence of your ties to the community, employment, family responsibilities, and prior compliance with court orders
- Secure character references and testimonials from employers, family members, and community figures
- Develop a realistic bail plan with proposed conditions (including electronic monitoring acceptance, reporting requirements, or residence restrictions)
- Respond point-by-point to the prosecution’s case and address any risk factors the court identifies
At O’Brien Criminal & Civil Solicitors, our criminal defence team specialises in serious domestic violence cases. We will appear at your bail hearing, cross-examine prosecution witnesses, and present the strongest possible case for your release on conditions. We also prepare comprehensive trial defence strategies.
If You Are a Victim: How Do These Laws Protect You?
If you are experiencing domestic violence and your partner has been charged or subject to court orders, these 2026 reforms provide significantly stronger protections during the legal process.
Bail protections: When a bail application is heard, magistrates must now take your safety concerns and domestic abuse risk factors into account when deciding whether to grant bail and what conditions to impose. The court can impose electronic monitoring, exclusion zones, curfews, and contact prohibitions designed to keep you safe.
SDAPOs for high-risk offenders: If your abuser has a history of serious or repeated domestic violence, police or the Director of Public Prosecutions can apply for an SDAPO targeting the highest-risk perpetrators. These orders are more restrictive than standard ADVOs and can protect you and your children long-term.
Covert tracking protection: If your abuser has been using hidden tracking devices to monitor your movements, this is now a standalone criminal offence. You can report this conduct to police and seek legal protection.
You should speak to a specialised domestic violence lawyer to understand how these protections apply in your specific situation. At O’Brien Solicitors, our civil law team also assists victims of domestic violence in pursuing compensation for harm suffered in appropriate cases. No win, no fee arrangements are available for eligible victims.
Need Legal Advice?
O’Brien Criminal & Civil Solicitors offers a free initial consultation with no obligation. Whether you have been charged, are facing bail proceedings, or are a victim seeking protection, our award-winning team handles criminal defence, civil claims, victim protection Australia-wide.
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