Can a person be charged with breaking and entering if they force their way into a home they once shared—and are still named on the lease for? Until recently in New South Wales, the surprising answer was often no. A 2023 High Court decision exposed a gap in the law that meant a person who kicked down the door of a former partner’s home could avoid a break-and-enter charge, even where they no longer lived there and committed a violent offence inside. The NSW Government is now moving to close that gap. This article explains the current law, the decision that exposed the problem, and what the reform changes.
Break-and-enter offences in NSW are set out in Division 4 of Part 4 of the Crimes Act 1900 (NSW). The most commonly charged offence is under section 112: breaking and entering a dwelling-house or other building and committing a serious indictable offence inside. To prove this, the prosecution must establish two things: that the accused broke and entered the premises, and that they committed a serious indictable offence while inside.
A “serious indictable offence” is one punishable by five years’ imprisonment or more, which captures a wide range of conduct including assault occasioning actual or grievous bodily harm, sexual assault, and larceny. The base offence under section 112 carries a maximum of 14 years’ imprisonment, rising to 20 years in circumstances of aggravation.
The difficulty lies in the word “breaks.” The courts have long held that breaking and entering requires a trespass—that is, entry onto someone else’s premises without lawful authority. If a person has a legal right to be there, forcing the door open does not, on its own, turn the entry into a “break” in the criminal sense. The classic illustration is a tenant who breaks their own window to get in after losing their keys: they have not committed a break-and-enter offence, because they were entitled to enter.
In BA v The King [2023] HCA 14, the High Court considered a man who had been in a relationship with the complainant and was a co-tenant of their apartment under a residential tenancy agreement. After the relationship broke down, he moved out, removed most of his belongings and stopped paying rent—but remained named on the lease. He later returned, forced entry by breaking down the locked door against the occupant’s wishes, and assaulted her inside.
By a narrow 4–3 majority, the High Court held that he could not be convicted of breaking and entering. Because he was still a co-tenant with a right of exclusive possession under the lease, he had lawful authority to enter—and that authority was not removed by the fact that he had stopped living there, nor conditional on the occupant’s consent. Without a trespass, the “break” element could not be made out. He did, however, plead guilty to other offences including common assault, intimidation and destroying property.
The dissenting judges took the view that the offence exists to protect people’s peace and safety in their own homes from those who are no longer entitled to be there. But the majority’s decision is binding law, and its practical effect was stark: a person could force their way into a former partner’s home and avoid a break-and-enter charge purely because their name remained on the tenancy.
The NSW Government has introduced reforms to the Crimes Act aimed squarely at this gap, in the context of protecting victim-survivors of domestic and intimate partner violence. The central change is that a person who is no longer an occupant of a home can be prosecuted for breaking and entering regardless of any legal or equitable interest they hold in the property—meaning a lease or joint ownership can no longer operate as a shield.
According to the Government, the reform is designed to apply where a person who is no longer an occupant forces entry and commits, or intends to commit, a personal violence offence against a current or former intimate partner. In other words, it is targeted: it focuses on residential homes, on conduct involving violence, and on the breakdown of an intimate relationship—the very circumstances that arose in BA v The King.
A key feature of the reform is its treatment of court orders. The Government has indicated that a person will not be treated as an “occupant” where an Apprehended Violence Order, bail condition, parole condition or other court order prohibits them from living at the premises or requires them to live elsewhere. In short, if it is unlawful for the person to reside at the home, they cannot rely on a claimed right to be there to defeat a break-and-enter charge.
This sits alongside the existing position that breaching an AVO is itself a criminal offence. A person who forces entry into a protected person’s home in breach of an AVO may now face both an AVO-breach charge and a break-and-enter charge, significantly increasing their potential criminal liability.
The reform has been drafted to avoid catching people who return to a former home for legitimate reasons—such as collecting their belongings or a pet—rather than to harm anyone. Because the new exposure to liability is tied to the commission, or intended commission, of a personal violence offence against a partner, a person returning for an innocent purpose is not the target of the change.
Reforms of this kind are not without critics. Some argue that relationship breakdowns are rarely clear-cut, and that highly specific offences can be difficult to prove and risk criminalising messy but non-violent separations. Others note that much of the underlying conduct—assault, intimidation, stalking, breaching an AVO—is already criminal, and question whether a narrowly drafted new offence adds protection or simply complexity. Supporters respond that closing the BA loophole sends a clear message that a person’s home should be a place of safety, and that a lease should never be a defence to forcing entry and committing violence.
If you have been charged with break and enter, assault, intimidation, or breaching an AVO arising from entry into a former partner’s home, the law in this area is both serious and rapidly evolving. Whether an entry amounted to a “break,” whether you were an “occupant,” and whether any court order was in force can all be decisive to the outcome. Equally, if you are a victim-survivor, understanding how these offences and your rights interact can help you take the right protective steps.
Our experienced criminal lawyers can advise you on how these laws apply to your specific situation, defend break-and-enter and domestic violence charges, and assist with bail applications where needed. Contact NS Criminal Lawyers for a confidential discussion.
This article provides general information only and is not legal advice. The law in this area is subject to ongoing reform and is current in New South Wales as at the date of publication. For advice about your circumstances, please contact a qualified criminal defence lawyer.
