Legislative Assembly for the ACT: 2022 Week 04 Hansard (Thursday, 5 May 2022) . . Page.. 1302 ..
As a result, victim-survivors may be concerned that they may not be believed if they cannot say that they actively pushed away or said no to a sexual act. People can respond differently to traumatic situations, and the clarification provided in this bill may assist more people to identify their experiences as non-consensual. It will also send a powerful message to the community that may assist to change prevailing attitudes and misconceptions.
As I have already noted, another key aspect of the bill is to introduce an affirmative consent model into the ACT. This will also address the issues of the freeze and surrender responses. The bill introduces the requirement that a person must take active steps to ascertain whether another person is consenting to a sexual act. In circumstances where an accused person does nothing to ascertain another person’s consent, they will no longer be able to rely on a defence of genuinely but mistakenly having believed that the other person consented.
An accused person will also be taken to know that another person does not consent if any belief that the accused has or may have that the other person consents is not reasonable in the circumstances. This is a significant and welcome shift in the law and reflects similar changes that are happening in other jurisdictions as a result of advocacy by victim-survivors.
This bill will have an important role in progressing community attitudes towards consent and helping to remove what is unacceptable behaviour from society. However, while the bill has an important educative role, it does not lessen the complexities that are present in sexual assault investigations and prosecutions. Moreover, we must continue to take holistic action to address sexual violence by improving our criminal justice system and continuing to challenge misconceptions about consensual and non-consensual sexual activity. I commend the bill to the Assembly.
MS CLAY (Ginninderra) (3.57): I am really pleased, as are all my colleagues, to see that this bill is clearly going to pass. Positive consent laws are an issue that the Greens have been campaigning on for many years. We put them in our election platform in 2016 and 2020. We included them in our parliamentary and governing agreement, and it is great to see that it has come to this point now.
This bill we are debating is based on the work of my predecessor Caroline Le Couteur. Caroline first tabled a positive consent bill in 2018. In developing that, she developed a discussion paper and undertook significant research and consultation. Her efforts led to public discussion and brought out into the open the shortcomings and the flaws of the current definition in the Crimes Act.
Her bill did not pass, but it generated a significant committee inquiry, the results of which have informed this bill that Dr Paterson has developed and has worked through so many of the issues. I am really happy to see that this long-running program of work is finally coming to fruition and I am really sorry that the previous version did not pass, because we might be further ahead.