Break And Enter Laws: Is It Legal To Forcibly Enter An Ex Partners Home After Moving Out?

The NSW government has targeted a loophole in existing break-and-enter laws to better protect victims of domestic violence by proposing landmark reforms. The amendments enshrined in the Crimes Amendment (Breaking and Entering Offences) Bill 2026 respond to controversy in Australia’s High Court, which highlighted that even if an accused forcibly enters a home that they have a legal interest in, they cannot be charged for a break-and-enter offence under current legislation.

This technical loophole has potentially devastating implications for victims of domestic violence, as they cannot rest assured that the law is on their side if an aggressor enters their home. This oversight becomes especially dangerous considering the surges in femicide around the country, with calls for a Royal Commission into this epidemic.

The government has attempted to target domestic violence in the many ways it can manifest, most notably through their introduction of coercive control offences, and these new reforms could be another step in the right direction.

Break and Enter Offences – The Current Law

The laws around break-and-enter offences are governed by Division 4 of Part 4 of the Crimes Act 1900 (NSW), with the most common offence being section 112: breaking into a house and committing a serious indictable offence. To establish this offence, the prosecution must prove that:

• The accused physically did break-and-enter into or out of a dwelling-house or other building, and
• The accused committed a serious indictable offence while inside.

A serious indictable offence is defined by section 4 of the Crimes Act as any offence punishable by imprisonment for 5 years or more. This covers a wide range of conduct, most notably larceny, assaulting occasioning actual or grievous bodily harm, and sexual assault.

The contentious area for the current issue is the requirement to prove the accused actually “broke in”, which requires proving that the accused trespassed, and therefore entered without legal authority. The High Court in BA v The King [2023] HCA 14 used the example of someone breaking their window to enter their home because they forgot their keys: this would not be an offence.

The High Court Decision That Exposed The Gap: BA v The King [2023] HCA 14

The decisions of Australia’s High Court are legally binding for the entire country, which mean that their findings become the current law that we all must follow. So, the Court weighing in on breaking and entering has real consequences.

In BA v The King [2023] HCA 14, the matter before the court concerned an appellant who entered into his former partner’s home by kicking down her door, before intimidating, assaulting her, and destroying her phone.

The court found that since the appellant was legally listed as a co-tenant under their Residential Tenancy Agreement, he cannot be found to have “broken and entered”, even though his entry was forcible, the complainant did not consent to his entry, he no longer lived there, and he committed serious indictable offences inside.

The High Court was split 4-3 on this decision, with the minority arguing that the offence of break-and-enter exists to protect the peace of residents from non-residents, but the bench ultimately ruled in favour of this loophole.

What this means is that if you have a falling out with your partner, and you forcibly enter the home without your ex-partner’s consent after moving out, by breaking through the window or door, you will not be guilty of the offence of breaking and entering if you are still named as a tenant in the tenancy concerning the property broken into.

The Proposed New Laws to Close the Gap- How the 2026 Amendments Work

The new Bill looks to close this loophole by introducing a new section 115AA to the Crimes Act, that allows a person who has a legal interest in the property to be found guilty for breaking and entering if four new conditions are met. Importantly, these conditions target intimate partner violence and domestic violence, like the situation in BA.

The first condition is that this new exception would only apply to dwelling-houses, which limits the reforms to residential premises only. While general break-and-enter offences are not confined in this way, the government narrowly drafts this new legislation to acknowledge the sanctity of someone’s private home, especially in a domestic violence context.

Secondly, the proposed provisions will only apply if the accused is not an “occupant” of the dwelling home at the time of the break and enter: this stipulation specifically targets the loophole exposed by the High Court and makes a legal or equitable right to the property redundant in this context.

Importantly, the provisions will intentionally not define what an “occupant” is. While this may initially look like incomplete legislative drafting, this sort of flexibility is actually essential for courts, since the distinction between an occupant and resident is extremely nuanced and context dependent. In fact, more rigid legislation could run the risk of not capturing a broad enough set of circumstances.

To assist with the courts’ determination, the Bill proposes a non-exhaustive list of factors to be considered, including any prior agreements between the tenant and accused, whether the intimate personal relationship between them has ended, and the circumstances under which the accused left the house. Ultimately, the courts will decide based on facts and any matters they consider relevant.

However, the proposed legislation does explicitly state that a person cannot be considered an occupant if there is an apprehended violence order (AVO), bail condition, parole condition or other court order that prohibits them from residing at the premises in question or which requires them to reside at another premises. Essentially, if it is illegal for the accused to reside at the premises, they are not legally considered an occupant for the purposes of this offence, even if they are physically there.

The third condition builds on the requirement that a serious indictable offence be committed inside the residence and also stipulates that the offence must be a “personal violence offence”. This offence is defined under section 4 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and contains many serious offences such as assault and sexual assault. The Government’s new addition here reinforces the legislation’s aim of combating domestic violence.

Importantly, this provision attempts to avoid the risk that a victim who breaks into a former home for an innocent reason, for example, to collect their belongings or a pet, may be caught under this law that targets aggressors. The rationale here is that a victim is simply less likely to commit a violent offence in this context, so this added test essentially excludes them from the legislation’s scope.

Finally, the fourth condition is that the offence must be committed against or intended to be committed against a current or former intimate partner, which is broadly defined under section 54C of the Crimes Act and section 21C of the Interpretation Act 1987 (NSW). The definition includes current/former married partners, current/former de facto partners, and those who were currently/formerly in an “intimate personal” relationship, regardless of any sexual nature. Again, this amendment targets the breakdown of personal relationships that often accompany break-and-enter incidents, as in BA v The King.

Overall, the proposed bill looks to establish some groundbreaking and procedurally complex reforms to attack a clear legal loophole and strike at the heart of domestic violence incidents.

Michael Daley, the Attorney General for Maroubra, acknowledges the complicated nature of the amendments. Therefore, he has included certain measures to allow for a gradual incorporation that lets justice agencies make system changes and complete training, while also stipulating that the bill will be reviewed.

Differing Opinions and Controversy

A commonly held objection to these amendments is that they risk unnecessarily criminalising complicated separations. The breakdown of intimate relationships is rarely a clean affair, and so the specific requirements of the proposed amendments seem difficult to make out. Historically, the government’s attempts to fix these highly situational and context-dependent issues with the “blunt edge” of statute have had mixed outcomes. For example, the newest “coercive control” offence has been faulted for worsening racialised policing, victim misidentification, and not adequately reflecting community experiences.

In fact, the attempt to govern by crime, as displayed by these amendments, is widely considered an ineffective strategy. Organisations such as the Redfern Legal Centre suggest that domestic violence and intimate partner violence are best addressed by community education and early intervention, rather than criminalising conduct and hastily involving the criminal justice system.

Another relevant objection is that the abusive conduct in question is already appropriately targeted by existing laws, such as “stalk and intimidate”, “assault”, and “contravening an AVO”. By introducing legislation so limited in scope, Parliament risks overcomplicating the law and a prosecutor’s role. In fact, specialised offences such as “assault occasioning death”, intended to target one-punch killings, are frequently rejected by prosecutors for more general offences such as “manslaughter”. Often, the practical outcome of highly specialised legislation is that deserving victims in similar circumstances fall through the cracks: for example, in this context, caretakers and family members.

By Subhan Mustafa.