Page 1295 - Week 04 - Thursday, 5 May 2022
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developing this bill. It is a complex area of law, as evidenced by the large body of work that has been done on this issue over many years, including by the New South Wales Law Reform Commission and several parliamentary committees. It is also an area of law that is in need of reform. It has needed reform for many years.
My Greens colleague Caroline Le Couteur undertook this challenge in the last Assembly, developing a bill, taking it to a committee and, unfortunately, running into enough obstacles so that her bill was not passed before the Assembly ended. Reforming consent law then became a part of the parliamentary agreement formed between the Greens and Labor after the 2020 election. It is excellent to see that Dr Paterson has continued this important work and brought this reform to the Assembly again, and to a point where we are ready to pass this bill today.
I will turn to the detail of the bill. Under ACT law, it is a crime for a person to have sexual intercourse with a person without consent. It is also a crime to commit an act of indecency on or in the presence of another person without consent. For one of these offences to be made out, there must be, first, an absence of consent and, secondly, the accused person must have actual knowledge or be reckless as to that absence of consent.
This bill makes reforms to strengthen the ACT’s laws in relation to consent. It introduces what is called a positive definition of consent. This is defined as informed agreement that is freely and voluntarily given and communicated by doing or saying something. The bill also introduces a provision which sets out overarching principles of consent to reinforce what should in fact be common sense; that is, consent is not to be presumed and involves ongoing and mutual communication and decision-making by the people participating.
The provisions introduce a communicative consent model into ACT law to reinforce the importance of an ongoing dialogue between consenting parties. The bill also amends section 67 of the Crimes Act 1900 which currently sets out the grounds on which it may be established that a person does not consent.
Where an accused person knows that consent has not been given, by virtue of any of these listed grounds, they are deemed to have known that there was an absence of consent. The bill adds to the list of new grounds, such as where a person says or does something to communicate without withdrawing agreement. It also clarifies that a person does not consent only because they do not say or do something to resist the act or because on that or on an earlier occasion they had consented to engage in a sexual act with the accused person or someone else.
While this is already the law in the ACT, the bill clearly sets out these standards for consensual sexual activity in the Crimes Act 1900. In addition the bill provides that an accused person is deemed to know that another person does not consent if any belief that the accused person has or may have that the other person’s consent is not reasonable in the circumstances. This amendment will mean that, as an alternative to relying on actual knowledge or recklessness as to the absence of consent, the prosecution will also be able to rely on an accused person’s lack of a reasonable belief
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