Page 446 - Week 02 - Wednesday, 21 February 2018
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With the exception of the ACT, every Australian jurisdiction has a statutory definition of consent based on one of the following formulations:
• free agreement;
• free and voluntary agreement;
• or consent freely and voluntarily given.
The ALRC saw this inconsistency as so potentially damaging that they included a specific recommendation in the report for all states and territories to include a positive definition of consent in line with this construction.
Both ACT Labor and the ACT Greens committed to finishing the work we started two Assemblies ago and finally implement any outstanding ALRC recommendations on family violence. In fact, we considered this so important that we included it in our parliamentary agreement.
When I was younger there was a major campaign that “No means No” as far as consent goes. And of course it still does. It may seem crazy to younger people here but that actually has not always been a widely understood concept, and arguably it still is not. What we, and the many community organisations and individuals who responded to my bill last year, as well as the ALRC, are saying is that we now need a logical, clear-cut and affirmative definition of consent that would say what sexual consent is and what it is not.
Despite considerable reform to family violence and sexual assault laws over the past few years, inadequacies of the system continue to undermine and restrict survivors’ ability to access protection, redress and justice. The system re-traumatises survivors, with low reporting and conviction rates persisting.
The definition of consent has a central function in determining the outcome of a sexual assault case. In the majority of cases there is no physical evidence or impartial witness and the focus of the trial is thus on the competing evidence from the complainant and defendant about whether or not the sexual activity was consensual.
Our legal system’s approach to sexual offences remain inadequate, despite the considerable headway the ACT government has made over recent years to improve the matter. Unjust outcomes in the court, in turn, reinforce rape myths and perpetuate patterns of non-reporting by victims and non-enforcement of sexual assault laws by police, prosecutors and trial judges in subsequent cases.
In developing this exposure draft I have considered section 22 of the ACT Human Rights Act 2004 which outlines that everybody charged with a criminal offence has the right to be presumed innocent until proven guilty. Our bill is based on feedback from the Human Rights Commission and we have been working with them to refine our definition to make sure it aligns with both our objectives and meeting our human rights obligations. On balance, I believe that the proposed legislation does not unduly burden the right to be presumed innocent and provides appropriate safeguards to ensure that people are not convicted merely because they are unable to overcome an unreasonable burden of proof.
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