Page 4501 - Week 12 - Wednesday, 31 October 2018
Many of the submissions made by the community organisations were clear that the ACT is the only jurisdiction currently not to have a positive definition of consent in our legislation and that this did not reflect the community accepted standard that yes means yes. It was submitted that a positive definition of consent should be based on a free and voluntary agreement to engage in sexual activity. The current legislation in the ACT defines consent by what negates it: that is, the factors that give rise to determining when consent did not exist.
Submissions and evidence from legal practitioner bodies clarified the position in the ACT that, whilst we do not have a positive definition of consent in our legislation, the reason for that is that consent by its very nature means free and voluntary and the absence of this means there is no consent. The committee also received evidence that the common law had developed greatly in the area of consent in the ACT and that, whilst the statutory definition may not have a positive definition, the current law does reflect the broad community standard of consent being a free and voluntary agreement to engage in sexual activity.
It became clear in the submissions and the subsequent evidence we received from the legal practitioner bodies that, whilst the intent of the bill was acknowledged, there were some flaws in the drafting, essentially conflating two distinct aspects of consent: first, that the victim actually consented; and second, whether the defendant knew or was reckless as to the victim’s non-consent. This conflation raised a significant problem in the risk of essentially removing the common law defence of honest mistake and flipping the onus of proof to the high level of the defendant being satisfied on an objective standard that consent was given.
The committee carefully considered the evidence from all witnesses in balancing the need to ensure that our laws reflect our community standards, on the one hand, and that we are not inadvertently infringing on a fundamental right of innocence until proven guilty and a prosecution having the onus of proof beyond a reasonable doubt in criminal matters, on the other.
The committee also noted the current New South Wales Law Reform Commission inquiry into the issue of consent in response to the controversial case of Lazarus and that the commission is currently seeking submissions and is due to report next year. It was submitted by a number of witnesses, including Ms Le Couteur and the Attorney-General, that it would be prudent to await the findings of the New South Wales Law Reform Commission’s inquiry. The committee supports this approach.
As members will note, however, the report does not stop at this one recommendation. The committee acknowledges the submissions received from the Canberra legal fraternity, the Canberra community sector and the ACT Human Rights Commission, and believes it is important that the report consider and make findings based on evidence we received from the Canberra community.
Accordingly, whilst we acknowledge that legislative reforms through this chamber should await the New South Wales Law Reform Commission findings, there are other core considerations and factors we have found which the committee hopes will be