Chapter 2Australia's sexual consent laws
2.1Over the last two years, New South Wales (NSW), the Australian Capital Territory (ACT), Victoria, Queensland and Tasmania have amended their sexual consent laws. Western Australia (WA) and the Northern Territory (NT) are currently considering legislative reform, and South Australia is not currently reviewing its sexual consent laws.
2.2The Law Council of Australia (Law Council) compiled a table of the sexual consent laws across Australia. This compilation shows the similarities and differences in the laws and, due to its comprehensive nature, has been of great assistance throughout the inquiry.
2.3Another highly useful contribution by the Law Council was its distinction between the two criminal law approaches adopted in Australia:
the common law jurisdictions—NSW, Victoria and South Australia—rely on common law and statute law to proscribe criminal conduct; and
the code jurisdictions—Queensland, WA, Tasmania, the NT and the ACT—rely only on statute law to proscribe criminal conduct.
2.4Submitters and witnesses acknowledged the jurisdictional variance, including in relation to the definition of ‘consent’. This chapter of the report discusses the following matters:
the definition of ‘consent’ and concerns about legislative inconsistency;
the national harmonisation of sexual consent laws; and
the limitations of sexual consent law reform.
Definition of ‘consent’
2.5In 2010, the Australian Law Reform Commission (ALRC) and the NSW Law Reform Commission recommended that federal, state and territory sexual offence provisions contain a statutory definition of ‘consent’ based on the concept of ‘free and voluntary agreement’:
…a definition based on agreement properly reflects the two objectives of sexual offences law: protecting the sexual autonomy and freedom of choice of adults; and reinforcing both positive and communicative understandings of consent through use of the term agreement.
2.6The Law Council submitted that, in general, all jurisdictions now define sexual consent based on a variation of the concept of ‘free and voluntary agreement’, which reflects the communicative consent model. Submitters and witnesses agreed that this creates a level of consistency across jurisdictions.
2.7The Law Council noted that in two jurisdictions—Queensland and WA—the definition of ‘consent’ requires consent to be ‘freely and voluntarily given’. Thelaw reform commissions in those states have questioned whether there is any real significance with the different terminology:
…the Law Reform Commission of Western Australia noted that the Supreme Court of WA has held that ‘consent requires, in effect, an agreement as to what it is that is being consented to’ and that ‘consequently, changing the wording of the [Criminal Code Act Compilation Act 1913 (WA)] provision to refer to agreement may have little effect…[T]he Queensland Law Reform Commission was doubtful that the difference in terminology between Queensland and other jurisdictions in relation to the expression of the definition of sexual consent had any practical significance. That Commission reasoned that the current definition of consent already reflects a communicative model of consent, in that it requires consent to be ‘given’ (that is, communicated) to the other person and the introduction of a new term like ‘agreement’ would not substantially change the operation of the law, and might contribute to uncertainty in interpretation because of the loss of case law guidance applying to the existing definition.
2.8The Law Council suggested that there are more significant legislative differences, such as in the elaboration of circumstances where consent is vitiated (see ‘Circumstances that vitiate consent’ below) and applicable defences that inform the application of the definition of sexual consent in particular cases (see‘Mental state requirement’ below). Its submission also noted important differences in the rules of criminal evidence and procedure.
Circumstances that vitiate consent
2.9All jurisdictions set out an exhaustive or non-exhaustive list of circumstances in which people do not consent to a sexual activity. Dr Natalia Antolak-Saper, acomparative criminal law expert based at Monash University, submitted that, the lists ‘typically include factors such as force or the fear of force, circumstances affecting consciousnesses [sic], fraud, unlawful detention, and abuse of authority’.
2.10Submitters and witnesses commented, however, on circumstances that are not considered uniformly as vitiating factors, such as domestic and family violence (DFV) and capacity.
Dynamics of domestic and family violence
2.11Women’s Legal Services Australia (WLSA) submitted that coercion, which is commonly included in legislation as a vitiating factor, intersects with DFV, which is not a vitiating factor for consent in all jurisdictions.
2.12WESNET, a national peak body for specialist women’s DFV services, and the National Foundation for Australian Women explained that the concept of consent is particularly ‘fraught’ in this context, as there are several overlapping dynamics:
DFV involves the exertion of power and control, and the exploitation of power imbalances, enabling the more powerful to drive and develop relationship parameters which may involve sexual violence…The nature of DFV, and the coercive control inherent within it, blends the lines between ‘normal’ and not. Combined with the effect of trauma on diminishing self‑worth, self-esteem and autonomy, this can render people more likely to enter into and stay within an abusive relationship.
2.13WLSA agreed that sexual assault is frequently part of a broader pattern of coercive control, relationship dependence, power imbalance and violence, which can obfuscate whether consent is being freely given:
Domestic and family violence can create a climate of entrenched fear which makes it difficult to facilitate or negotiate safe sexual activity. At times, a natural response to coercive control will be to compromise autonomy to manage safety. In such situations, women may prioritise other aspects of physical safety for themselves and others, rather than take the risk of triggering an escalation of violence or abuse by refusing to engage in sexual activity.
2.14WLSA argued that consent in family and like relationships must be understood as being within ‘an entrapment context that is riddled with risks, survival mechanisms, and based on the perpetrator’s establishment of power’. It argued:
It is vitally important that all sexual consent laws respond to the complex dynamics of coercive control, and acknowledge that there is no consent where a sexual act is submitted to because they are a victim of coercive control.
2.15Women With Disabilities Australia (WWDA) also supported the recognition of power imbalances in sexual consent laws, advising that these imbalances often foreshadow sexual violence against women and girls with disability.
Capacity of people with disability
2.16WWDA highlighted particularly that sexual consent laws sometimes do not recognise and uphold the agency, autonomy and abilities of women with disability. In its view, legislative provisions should be more nuanced to properly balance protection and human rights.
2.17Queensland Advocacy for Inclusion (QAI) agreed that sexual consent laws can infringe the human rights of people with disability, by limiting their right to sexual expression. To illustrate its argument, QAI referenced section 216 of the Criminal Code Act 1899 (Qld), which criminalises sexual activity involving a person with an ‘impairment of the mind’ (asdefined):
Assumptions about a person’s capacity cannot and should not be drawn simply from the presence of an impairment. All adults at law are presumed to have decision-making capacity until proven otherwise and capacity should be assessed on a decision-by-decision basis...including decisions about engaging in sexual activity…Singling out people with an ‘impairment of the mind’ and denying their right to sexual expression is discriminatory to people with disability in the sense that they are treated less favourably than others by the law. This is contrary to various legal instruments…exemplifies antiquated attitudes towards people with disability and perpetuates harmful stereotypes that conceptualise people with disability as ‘victims’ or asexual, unable to enjoy autonomy over their bodies and unable to exercise self-determination and personal control over their own lives. Such attitudes are extremely destructive and have no place within today’s society.
Mental state requirement
2.18A key difference between the common law and code jurisdictions is the mental state requirement for sexual offences. The Law Council explained:
In common law jurisdictions, the prosecution is required to show that the accused demonstrated a specific mental state to establish the offence.InVictoria, [for example], establishing the offence of rape requires proof that:
the accused sexually penetrated the complainant;
the complainant did not consent to the sexual penetration; and
the accused did not reasonably believe that the complainant consented.
2.19In evidence, some witnesses commented on the mental state requirement and in particular, the requirement for the accused to have said or done something ‘within a reasonable time’, in order for a belief in consent to be reasonable (forexample, subsection 61HK(2) of the Crimes Act 1900 (NSW); subsection 36A(2) of the Crimes Act 1958 (Vic)).
2.20Mr William Douglas, Acting Manager Policy and Research at No to Violence, shared the view of Dr Rachael Burgin, Chief Executive Officer of Rape and Sexual Assault Research and Advocacy (RASARA), when he queried the meaning of the phrase ‘within a reasonable time’:
…'reasonable' time' is ambiguous…and that needs to be looked at, because there's nothing in the research evidence that gives a clear picture of what that reasonable time is, and that could be interpreted in many different ways.
2.21In contrast to the common law jurisdictions, sexual offences in code jurisdictions usually do not contain a mental state requirement as an element of the offence. The Law Council referenced the Law Reform Commission of Western Australia which has highlighted that an accused’s mental state is relevant to a defence only:
The Law Reform Commission of Western Australia noted that, in code jurisdictions, establishing rape would only require proof that the accused committed the relevant conduct (for example, sexual penetration) and (ifrelevant) that the complainant did not consent to that conduct. Critically, the accused’s mental state would only be relevant to defences contained in the code such as mistake of fact.
Mistake of fact defence
2.22Some code jurisdictions—Queensland, WA and Tasmania—have a mistake of fact defence. This defence enables an accused to argue that there was an honest and reasonable, but mistaken, belief that a complainant consented to a sexual activity.
2.23The Law Council advised that ‘there is some convergence in code jurisdictions to clarify the scope of mistake of fact defences in their application to sexual offence cases, to better realise communicative consent principles’. Its submission cited the example of subsection 348A(2) of the Criminal Code Act 1899 (Qld):
In deciding whether a belief of the person was honest and reasonable, regard may be had to anything the person said or did to ascertain whether the other person was giving consent to the act.
2.24Notwithstanding these reforms, some submitters argued that the mistake of fact defence should be removed entirely from sexual consent laws, as it conflicts with the affirmative consent standard (see Chapter 1). Australia’s National Research Organisation for Women’s Safety (ANROWS) submitted, for example:
The mistake of fact defence undermines the principles and positive duty of the affirmative consent model, which requires individuals to take active steps to ensure that the other party is providing clear and ongoing consent.
2.25WLSA agreed, explaining that the mistake of fact defence creates a loophole:
Although the law in most jurisdictions provides that a failure to offer physical resistance does not of itself constitute consent, a perpetrator could still argue that because the victim-survivor did not resist they had reason to believe they were consenting, and that in light of the lack of resistance their belief was reasonable.
Intoxication
2.26At the public hearings, several witnesses addressed the subject of intoxication being used as a shield when invoking the mistake of fact defence. ANROWS Chief Executive Officer, Ms Padma Raman, commented that intoxication combined with the defence perpetuates common rape myths, in particular: anintoxicated man is less responsible for perpetrating sexual assault.
2.27In this context, Ms Karen Iles, Director and Principal Solicitor of Violet Co Legal and Consulting, also referred to two rape myths that she fully rejected:
…one of the first myths to unpack in all of this—a sense that sometimes victim survivors may not know that they are being raped. I would like to say that is absolute poppycock. Victim survivors know when we are being raped. I kicked and I fought like hell. I said, 'No. Stop. Get off me' repeatedly. I bit. I had to be held down. I was locked in a room. I was threatened in the presence of a weapon. I had a dirty sock shoved in my mouth to muffle the noise…I wasn't confused and I would suggest my rapists were not confused. Regardless, I was 14 years old. I was a child. I was incapable of consent.
2.28Ms Iles continued:
…I would like to unpack myth No. 2—that perpetrators, criminals, don't know when they are raping. I would submit that many do. To say otherwise is a polite and somewhat palatable way of excusing rape...In my experience—I will refer now as a solicitor—of being in conversation with defence lawyers, it is a tactic that is used by those who are accused of sexual assault to say that they didn't know and that they were confused.
2.29Ms Angelique Wan, Chief Executive Officer and Co-Founder of Consent Labs, emphatically stated that ‘intoxication can never be used as an excuse for sexual violence’:
You may liken it to another act of violence, which is punching someone. Youwould still know even if you had consumed alcohol or another drug that punching someone is morally or ethically wrong and that you should not do it. Sexual violence should be considered in the same way.
Affirmative consent standard
2.30As part of their recent legislative reforms, three jurisdictions—NSW, Victoria and the ACT—introduced an affirmative consent standard into their sexual consent laws, whereby an accused is required to do or say something to find out whether a person consents to a sexual activity.
2.31Dr Burgin from RASARA explained that affirmative consent is a social theory of consent that wasn’t designed to be a legal principle:
So that translation of affirmative consent into law and legal practice is really what we're still grappling with...Ultimately, if we want to have an affirmative consent standard at law, we require certain elements to be present in the criminal law, including within the definition of consent but also more broadly in the fault element to the crime or the mistake of fact excuse, depending on the jurisdiction. Affirmative consent requires that consent is active and performative, that all parties to a sexual act are indicating through their actions and words that they want to consent. Thatmeans that someone's silence or passivity obviously doesn't equate to consent and that a person doesn't need to say no or withdraw consent.
2.32Ms Saxon Mullins, Director of Advocacy at RASARA, elaborated on what this looks like in practice:
It is you engaging in a sexual activity with somebody. You are asking them continually whether they want to be here and whether they are having a good time and they are continually giving you that response that they do and that they are. When you break it down in that way, I think it seems as simple as it really is.
2.33Ms Mullins noted that the affirmative consent standard would overcome the rejection of legitimate trauma responses—‘fawning’ and ‘freezing’—that are perpetuated by rape myths: ‘[the standard] does overcome that one small barrier of making sure that people are asking and the consent is given’.
2.34Mr Andrew Doherty described his own experience of a freeze response and indicated why recognition and understanding of that response is so important for victim-survivors seeking justice:
…the fragments that I do remember were tiny, bizarre details, not what you would expect someone in that position to remember…The laws are set up in such a way that I'm supposed to clearly remember not freezing and speaking clearly and putting down a memo: 'I would like to stop being raped, please. Oh, what is the time? That's the time. That's when I said it. Ilooked at my watch.' If that's what's expected of people who've been through significant trauma…then we will always be in a situation where rapists, who get to make up their narrative, are winning against victims, who are encouraged to tell the truth…[V]ictims who freeze and become dissociative are not going to remember particularly saying anything. If they do, what they tell you that they remember is going to either sound bizarre or not be helpful, in most cases.
2.35In relation to dispelling rape myths, Ms Mullins said that ‘there is a lot of focus on jurors and what sort of notions they bring to trials’, however, this underestimates the influence of judicial officers and legal practitioners:
Our judges don't understand this. Our prosecutors don't understand this. Our defence lawyers don't understand this. We can't be expecting them to guide a jury through what can be a confusing system with the right ideas when they don't have them.
Improved protection for victim-survivors
2.36Many submitters and witnesses welcomed implementation of the affirmative consent standard, which, they argued, provides better and fairer protection for victim‑survivors of sexual assault.
2.37No to Violence argued that affirmative consent aims to deliver justice where the criminal justice system has failed:
It has been common in sexual assault trials for the defence (representing the accused person) to challenge the Crown’s (prosecution) ability to prove non‑consent by citing evidence that the complainant (victim-survivor) did nothing to show non-consent, such as her silence or lack of resistance. Under reforms on affirmative consent, evidence that a person or complainant (victim-survivor) did not say or do anything to communicate consent will be evidence of non-consent – which becomes a prosecution strength.
2.38Similarly, Legal Aid NSW highlighted that the affirmative consent standard dispenses with the concept of assumption: ‘if a victim does not actively affirm their consent to sexual activity an accused cannot assume that their silence means "yes"’.
2.39TheNational Foundation for Australian Women submitted:
Personal agency includes the right to decide freely when and with whom to have sex…[The affirmative consent model] represents a significant divergence from the historical emphasis on when consent is not given or not obtainable, rather than when it is...[A]ffirmative consent means that consent is actively sought and actively communicated. This switches the emphasis from the actions of the victim-survivor to the actions of the perpetrator, and from a ‘no means no’ standard to ‘yes means yes’.
2.40WESNET remarked that the ‘switch’ is fairer and more balanced:
…an individual seeking to have sex with another person must obtain clear, express consent from them before (and while) engaging in a sexual act. Itcircumvents some of the complexities and subjectivities associated with contemplation of the perpetrator’s beliefs and the victim’s behaviour.
Fundamental legal principles and protections for the accused
2.41Some stakeholders acknowledged the current and important focus on improving the experience of victim-survivors in the criminal justice system. They cautioned, however, that the rights of the accused should not be overlooked. Liberty Victoria argued that sexual consent law reforms have challenged fundamental legal protections and principles for accused persons:
Any reforms to the law of consent, or to sexual offences more broadly, need to ensure that the presumption of innocence, the right to silence, and the right to a fair trial are still protected.
2.42The Law Council agreed that the fundamental principles that underpin the criminal justice process must be maintained. One such principle is the presumption of innocence and the onus upon the Crown to prove guilt beyond reasonable doubt.
2.43The Law Council referenced the Victorian Law Reform Commission, which also reiterated the importance of maintaining these fundamental principles of the common law within the context of sexual offending:
Changing fundamental features of our criminal justice system, such as the burden and standard of proof or the adversarial nature of the trial, would have wide-ranging effects, including on the right to a fair trial. Any such changes would need to have strong support and evidence. We did not find such support or evidence in this inquiry.
2.44The Law Council observed that some stakeholders consider recent implementation of an affirmative consent model in Victoria to be unnecessary, with a detrimental impact on the fundamental principles of the criminal justice system:
The Law Institute of Victoria, the Victorian Bar and other civil society stakeholders, such as Liberty Victoria expressed concerns arising from the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Vic). They said that some aspects of the reforms, which effectively impose an obligation on an accused person to give evidence to demonstrate what steps he or she took to ascertain consent [the affirmative consent standard], were not necessary to realise communicative consent and unacceptably erode the presumption of innocence and the right to silence.
2.45DrRachael Burgin from RASARA responded by expressing the view that such concerns are always raised whenever ‘something that is deemed radical arises’. She staunchly rejected the evidentiary basis for any such concern:
…there's no evidence, firstly, that affirmative consent undermines the presumption of innocence. It certainly doesn't reverse any right to silence in that it doesn't change laws around whether a person has to take the stand. We don't hold weight to those criticisms. There is no evidence to support that it will result in increased wrongful convictions. Some criticism is that we will see more people ending up in court held accountable for their behaviour. We would welcome that.
Unintended consequences for young people
2.46Liberty Victoria submitted that Victoria’s 2014 sexual consent law reform had already provided for an affirmative model of consent. It noted that this reform has not yet been evaluated, and expressed concern in relation to further complexities and potential unintended consequences:
…there have been many significant reforms to sexual offence provisions over the past decade, which have in practice resulted in much stronger directions on consent and consent-negativing circumstances in criminal trials, including whether an accused person’s belief in consent is reasonable. In that context, the impact of some of these proposed reforms should not be overstated…[T]he impact of the previous and significant reforms made in relation to sexual offences need to be properly considered and evaluated before adding these additional layers of complexity to an already highly complex area of the law, which may have unintended consequences.
2.47The Law Council highlighted that sexual offences are disproportionately investigated and prosecuted against teenagers and other young people. Itsuggested that sexual inexperience makes young people more vulnerable to sexual offending and also places them at higher risk of contravening the criminal law.
2.48The Law Council noted that some of its constituent bodies (notably, those based in Victoria) have expressed concern that ‘rigid requirements on young people to take active steps to ascertain consent’ could disproportionately affect them.
2.49Ms Iles from Violet Co Legal and Consulting strongly rejected any suggestion that the legal requirements should be any different for young people:
For young people, the largest single cohort of perpetrators are boys and men aged 15 to 19 years of age…I do not think they should be given a free pass. I don't think that the expectations on them should be any different...[Y]oung men in our society should absolutely be expected to understand right from wrong…As a society, can we do better in supporting boys and young men to understand the law? Absolutely.
2.50WLSA’s Executive Officer, Ms Lara Freidin, agreed:
…young men or boys between the ages of 15 and 19 are the single largest cohort of offender. So what we really need to be focusing on is how we hold those young boys accountable or how we educate them to think differently about consent, and I think that should be the focus of reform in this space.
2.51Ms Jacqui Watt, Chief Executive Officer of No to Violence, referenced the significant proportion of women who do not report sexual assaults. She argued that this has resulted in sexual violence not being properly addressed by the criminal justice system:
Using complexity or the fact that some people might be harmed by this [reform] is not a reason not to do it…[T]his is not about seeking to use legislation to change behaviour; it's about making a level playing field in the judicial process so that everyone knows where they stand and to remove some ambiguity that exists across jurisdictions and laws.
2.52Mr Michael Bradley, Director of the Grace Tame Foundation, also rejected arguments of the potential over-criminalisation of young people as a ‘nonsense’:
The easiest way to look at that is to appreciate the current probability of a rapist being convicted, which is well under one per cent. If we moved to a national model of true affirmative consent, if all our laws embodied affirmative consent as part of the rape provisions, that might shift that less than one per cent to somewhere closer to one per cent or maybe slightly over one per cent, but that's about it. You won't get higher than that because of that change. So we're talking about something operating right at the margins of negligibility. So the whole argument is a nonsense. At a theoretical level it has all been completely misplaced because all affirmative consent does is get us closer to a position where a person—and, let's be frank, a woman—who has not consented to a sexual act will not find herself in a position where she has been raped but the law has no response to that.
Concerns about legislative inconsistencies
2.53Numerous submitters and witnesses raised concerns about inconsistencies in state and territory legislation. They argued that this national inconsistency exacerbates misunderstandings about legal rights and responsibilities, and creates challenges for national consent education.
2.54Ms Chanel Contos, Founder and Chief Executive Officer of Teach Us Consent, supported having more consistent sexual consent laws, stating that the jurisdictional variation has always been ‘bizarre’:
People travel. People go places to party, to celebrate Schoolies and all of these different things. I noticed it when Teach Us Consent was running a campaign on the criminalisation of stealthing unified across Australia. Wehad testimony from a young woman saying that she had been stealthed in a state where it wasn't a criminal act but she was from Victoria, where it was. She was confused why, when she was googling it, this mismatch was happening.
2.55Consent Labs argued that young people do not always understand that sexual consent laws operate on a jurisdictional basis, which can affect their identification of sexual assault and decision to seek assistance or justice for the assault:
Young people under the age of consent are uniquely vulnerable to misunderstanding the laws, putting them at a disadvantage in being able to first identify when non-consensual behaviour has occurred, which then may dissuade them from seeking help from law enforcement when needed. Other compounding factors such as low education or intellectual disability can further place young people in significant vulnerability.
2.56Voices of Influence Australia, a youth-led organisation, submitted that there should be no ambiguity when it comes to consent:
Unfortunately, under Australia’s current patchwork of consent legislation, definitions of consent, standards for proving non-consent and penalties for sexual assault offences vary widely from state to state. This sets a dangerous and precarious situation for victim-survivors of sexual assault. Anon‑unified definition and approach means that victim-survivors have varying experiences of the criminal justice system and levels of protections based solely on where they live or where their assault took place.
2.57Ms Abigail Gregorio, Founder of WA Consent, described how intoxication is a vitiating factor for consent in many jurisdictions, but not in WA where she was sexually assaulted:
…it is incredibly important to have a unified approach from the government to something that is as insidious as sexual assault...It's really important because it affects how people view sexual assault. It affects how victim‑survivors view their own sexual assault…When I read that other jurisdictions did acknowledge intoxication affecting the ability to consent to sexual acts, I broke down for days. I'll be frank. I was a sobbing mess…To know that there are other people possibly getting the support that the people around me aren't getting is incredibly devastating.
2.58On this point, the Grace Tame Foundation remarked that sexual assault does not recognise state borders:
[T]here are no contextual differences between Australian jurisdictions that justify differences in how the law responds to it. We are a single society with, presumably, commonly held basic values. One of these is that women and children should be, and feel, safe to exist without the risk of being subjected to sexual acts to which they do not (or cannot) consent. Defining what consent is should not be beyond our ability.
National harmonisation of sexual consent laws
2.59In 1990, the Standing Committee of Attorneys-General (now the Standing Council of Attorneys-General, SCAG) commenced work on a national model criminal code for Australian jurisdictions (the Model Criminal Code, MCC). Thestates and territories committed to implementing the MCC, however, this has not occurred as envisaged.
2.60In 2017, Dr Arlie Loughnan, a criminal law expert based at the University of Sydney Law School, wrote:
Measured in terms of ambition and scope, the MCC was the most significant criminal law reform project in Australia’s history but, measured in terms of outcomes,the MCC has not been as significant, nor as successful, as its drafters had hoped. By modelling ‘best practice’ in criminal law, the MCC aimed to bring Australia’s nine criminal jurisdictions—six state governments, two territory governments and the federal government—into some sort of alignment. This was no easy task: in the Australian Federation, most criminal law is state‐based, and Australia has both common law criminal jurisdictions (New South Wales, Victoria and South Australia) and, as a result of earlier systematising efforts, jurisdictions with criminal codes (Australian Capital Territory, Northern Territory, Queensland, Tasmania, and Western Australia, as well as the Commonwealth). Crucially, as the common law states and the code states adopt different approaches to the principles of criminal responsibility. The drafters of the MCC attempted to resolve this issue once and for all, and to generate a centripetal force in criminal law in Australia. But, with state jurisdictions taking up the MCC provisions in a piecemeal and uneven way, it has not been thought to have had a decisive influence on the Australian criminal law landscape.
Challenges for national harmonisation
2.61Against this challenging and historical background, the Law Council submitted that there would be many—not insurmountable—challenges in achieving the national harmonisation of sexual consent laws, which it described as a ‘substantial undertaking’:
National harmonisation of sexual consent laws…would need to involve iterative consultations with all relevant stakeholders, extensive technical drafting, and a detailed implementation process. The Law Council notes that many of the challenges that might impede the adoption of model sexual consent definitions and offence provisions were obstacles in the context of the Model Criminal Code Project in the 1990s which failed to achieve wider adoption. However, the challenges…are by no means prohibitive and, with sustained consideration, may be overcome. The Law Council considers that a crucial determinant of the prospects of realising national harmonisation of sexual consent laws will be the level of granularity at which norms are prescribed.
2.62The Law Council then identified a number of challenges, such as the risk that frequent change in this area may undermine legal certainty:
The area of sexual offences has been subject to significant and ongoing reform across multiple jurisdictions, particularly in the last decade. Changes introduced by legislation take time to have practical effect on criminal charges before the courts…[I]t can take four to five years to ascertain whether legislative changes are having their intended effect…Theexperience of practitioners in this area is that frequent legislative amendment of sexual assault offence provisions and the definition of consent has resulted in the diminished applicability of case law guidance in interpreting the meaning of key provisions. This has the potential to undermine legal certainty for all parties involved. It is necessary to ensure that any reforms are evidence-based, principled, carefully considered to avoid unintended consequences, and designed to minimise the likelihood of further legislative tinkering.
2.63In addition to complexity and uncertainty, the Law Council and other stakeholders raised jurisdictional considerations and the risk of ‘levelling down’ as challenges that would need to be overcome.
Jurisdictional considerations
2.64As noted in Chapter 1, the federal Parliament’s ability to make laws with respect to sexual assault is limited by the Australian Constitution. Distinguished constitutional law experts, Dr Gabrielle Appleby and Dr John Williams, have noted that ‘law and order is one of the few areas of responsibility over which the states continue to hold the reins’.
2.65The Law Council submitted that, historically, the rationale for the distribution of residual powers to the states and territories is to enable diversity at the local level, ‘such that states and territories act as “laboratories of democracy”’. In its view, the national harmonisation of sexual consent laws risks ‘drowning out the voices of the local communities’ and crowding out ‘progressive local solutions’.
2.66With respect to the local element, With You We Can, a national network of victim advocates, experts and services, argued:
Laws are inherently intertwined with social principles, and different jurisdictions with distinct cultures and values will naturally have varying laws. Maintaining diversity in consent laws has value, as it allows for the observation of evidence-based practices from progressive states that others can adopt.
2.67As indicated earlier in this chapter, there are entrenched differences between the common law and code jurisdictions. The Law Council pointed out that the MCC project was unable to shift these differences despite its best intentions:
Differences between jurisdictions including differences in the specification of sexual consent definitions, sexual offences, elements of offences and applicable defences, should be viewed in the context of entrenched differences between jurisdictions that have tried, statutorily, to codify rules of evidence and procedure through implementation of the Model Uniform Evidence Bill and common law jurisdictions. Consideration should be given to the difficulties encountered in relation to material changes in the implementation of the Model Uniform Evidence Bill across states and territories, and the realities that case law interpretation in a jurisdiction may create jurisdiction-specific differences over time.
2.68Dr Antolak-Saper made similar comments in relation to jurisdictional jurisprudence and queried whether it would even be possible to agree on a range of sexual offences where consent is a critical element:
The interaction of consent with other elements of sexual offences can be complex and varied. It would be challenging for one element to be decoupled from the others and given uniform expression. For it to have the desired effect, the whole of the sexual offence frameworks ought to be harmonised including, for example, sexual assault, indecent assault, and procuring sexual acts by threat or fraud.
2.69The Tasmanian Government agreed that definitions and other elements of sexual offences cannot be assessed in a vacuum. Its submission argued that, inTasmania, the consent provisions are intertwined with other fundamental parts of the law:
Taken together, the linkage of Tasmania's consent definition with the various offence and criminal responsibility provisions across the rest of the Criminal Code should ensure fair trials, limit the application of (inherently limited) potential legal defences by requiring assessment of the reasonableness of an accused's belief, and counter harmful, wrong stereotypes about consent, victim response and relational power dynamics... These are required to work together not to create complexity, but to ensure that the Criminal Code operates holistically and reliably for all complainants and accused persons, in relation to all Tasmanian indictable criminal offences.
2.70The Tasmanian Government cautioned that jurisdictional differences in criminal law frameworks do not necessarily mean that outcomes across jurisdictions will vary or that one jurisdiction’s ‘quality’ of justice differs from another. However:
It does mean that altering consent and sexual offence laws across jurisdictions in the pursuit of high-level national uniformity risks creating a different standard for those sexual offences as against the remainder of the criminal law in each home jurisdiction.
Risk of ‘levelling down’
2.71Some submitters and witnesses voiced concerns that the national harmonisation of sexual consent laws might lead to the ‘levelling down’ of protections, toachieve common standards. For example, With You We Can suggested:
When proposing harmonisation, there is a tendency to imagine an ideal scenario where states that lag behind progressive affirmative consent laws will promptly draft new legislation. However, the reality of achieving uniformity may instead be the dilution of progressive laws, which victim advocates have dedicated themselves tirelessly to.
2.72The Law Council did not agree with this view:
…it seems unlikely that jurisdictions that have invested, over time, in law reform intended to strengthen the realisation of communicative models of consent will agree to any perceived dilution in order to achieve consistency. Conversely, it is also possible that a sustained national campaign may produce the kind of broad-based consensus required to lift standards across jurisdictions.
2.73The Grace Tame Foundation concurred:
Nobody is asking those State or Territory governments with more progressive views to reduce their ambitions to match those of more conservative inclination...There is nothing stopping the States and Territories from co-operating in this field and working sincerely towards a consistent and better set of laws. The only element lacking is imagination.
Benefits of harmonisation
2.74Although submitters identified concerns with implementing harmonised sexual consent laws, most stakeholders supported national harmonisation, including an affirmative consent standard. In their view, harmonisation would eliminate jurisdictional inconsistencies, provide clarity, and better support awareness and education about sexual assault.
2.75As has been noted by Professor Jonathan Crowe, based at Bond University, and Dr Guzyal Hill, Senior Lecturer at Charles Darwin University:
The current push to harmonise sexual consent law is important and timely. It would help support educational efforts around sexual consent and reduce confusion about the law. It has the potential to clarify the standard of ongoing communication expected before and during sex – a crucial component of affirmative consent models.
2.76Several submitters and witnesses contended that sexual consent laws have a role in setting standards that underpin education and behavioural change. Consent Labs’ Ms Wan advised that having affirmative consent as a legal standard in NSW has already improved the delivery of sexual consent education:
It has been incredible since affirmative consent has been adopted in New South Wales to be able to say to students, 'This is now also the expectation of the law. It's not just a moral or an ethical expectation that we urge you to consider. It is also a legal expectation that we encourage you to consider.'…[I]t is incredibly important that we harmonise our laws towards affirmative consent.
2.77ANROWS referenced findings from the 2021 National Community Attitudes towards Violence against Women Survey (NCAS, see Chapter 4). The NCAS revealed that a notable minority of the Australian population does not understand affirmative consent. In ANROWS’ view, a nationally consistent model could support the development of a more advanced community understanding. ANROWS representative Ms Raman, explained:
Our attitudes are shaped by the world around us. They are influenced by our families, friends and communities as well as through formal societal systems and institutions, such as schools, the media, police and, most importantly, the law. Attitudes have a real impact. They influence social norms about what is acceptable behaviour and how people respond to violence against women. Consent laws and community attitudes together can impact whether victims and survivors recognise their experience as actually being sexual assault or sexual violence, whether they choose to disclose or report and the responses that they receive to these reports. TheNCAS shows us that much more work needs to be done. Putting the symbolic weight of the law behind the changes we need to community attitudes will help us to reach our aim of ending violence against women and children in one generation.
2.78The potential to ‘raise the legal bar’ to better support victim-survivors featured throughout the inquiry, with ANROWS pointing out that a national standard for sexual consent is also consistent with the National Plan to End Violence against Women and Children 2022–2032 (National Plan):
While legislation alone cannot be expected to change attitudes or behaviour, the national harmonisation of consent laws (including an affirmative consent standard) would provide a clear framework for acceptable behaviour and a reference point for victims and survivors to understand their own experiences of sexual violence.
2.79Sexual Assault Services Victoria, a peak body for specialist sexual assault and harmful sexual behaviour services, added that, without an affirmative consent standard, many victim-survivors consider that the law does not recognise the sexual violence perpetuated against them:
The 350 expert therapists that work with specialist [sexual assault] and [harmful sexual behaviour] services in Victoria work with over 17 000 victim survivors a year – from children as young as four to young people and adults of all ages. Too many of our adult and older adolescent clients have told us the same thing – they could not seek justice, because the violence against them was not adequately recognised in law. Enshrining affirmative consent in law addresses this historic injustice.
2.80Women’s Legal Services Australia submitted:
The Commonwealth Government should work with State and Territory Governments to ensure that all jurisdictions establish nationally consistent, strong models of affirmative consent. A uniform national approach to affirmative consent will send a powerful message to the community about appropriate sexual conduct, contribute to cultural change, and will better serve victim-survivors and deter perpetrators.
2.81The Attorney-General’s Department advised that, through the SCAG, the Australian Institute of Criminology and the ALRC, there are ‘a whole lot of things in place to have those conversations and to support and facilitate states and territories across the board lifting their legislative responses’.
2.82The National Women’s Safety Alliance and Teach Us Consent cautioned, however:
Uniformity…is not a panacea in and of itself and must be approached cautiously to avoid gaps, errors, or unforeseen outcomes that, when harmonised, would compound. Furthermore, even where uniformity is achieved, there is a risk that it may effectively be undone through unilateral amendments by state and territory legislatures, non-cooperation, political cycles, or radical societal change.
Principles to underpin national harmonisation
2.83Ms Angela Lynch, Board Member of the National Association of Services Against Sexual Violence (NASASV), commented that ‘harmonisation is the actual law reform’, however, what is required are uniform principles that underlie the legislation. Ms Nicole Lambert, Chair of the NASASV, added:
It is about the implementation of the principles which support the legislation. If they are really embraced, endorsed and embedded into practice, that provides some of that structure to support the implementation of legislation change.
2.84The Law Council proposed eight principles that it suggested could guide the assessment of sexual consent laws and be the basis for further consultation, for example:
Principle 5: consideration should be given to vulnerable groups disproportionately impacted by implementation of communicative model of consent laws, including persons with disability and young persons.
…
Principle 8: the aims of any legislative change towards better realising the communicative model of consent should be supported by community education; there should be ample lead-in time to allow for targeted education of young people and vulnerable people who may be disproportionately impacted by changes.
2.85In evidence, Mr Luke Murphy explained that Principles 5 and 8 must be read together to understand the position of the Law Council with respect to young people: ‘the particular need to have targeted awareness and education programs for the vulnerable groups because of their disproportionate representation in this space’.
Limitations of sexual consent law reform
2.86In 2021, the Grace Tame Foundation launched its ‘Harmony Campaign’, acampaign aimed at bringing consistency to sexual assault laws throughout Australia. In its submission, the Foundation commented that, even if all jurisdictions legislated an affirmative consent model, this reform would not resolve the ‘scourge of sexual violence in our society’:
There are far bigger issues we must address if we are serious about this. These include addressing why young men and women in our society are so misinformed about what a healthy sexual relationship looks like; and why the experiences of sexual assault survivors in our criminal justice system are uniformly re-traumatising, regardless of the outcome of their cases.
2.87Many submitters and witnesses agreed that legislative reform cannot fully address the issue of sexual assault in Australia. Legal Aid NSW referenced international experiences, where significant changes to the content and structure of some sexual offence legislation has had ‘limited impact’.
2.88Sexual Assault Services Victoria submitted that, in addition to law reform, it is equally important to ‘implement initiatives with a whole-of-community approach’. It referenced research into the affirmative consent model in Tasmania, which revealed that ‘the legislative spirit of the [2004] reforms is not being fully realised’, as those reforms were not accompanied by ‘education for members of the legal community that were implementing the changes, and broad attitudinal change at the societal level’.
2.89Ms Raman from ANROWS concurred that ‘you can have the best laws in the world, but it is its implementation that is really important’. Similar to Sexual Assault Services Victoria, she noted that the numerous protections provided in Victoria have not affected conviction rates.
2.90In relation to sexual assault trials, WLSA highlighted:
…statutory reforms and [jury directions] addressing rape myths and misconceptions are not self-executing. Unconscious biases towards victim‑survivors will not change, nor will sexual consent literacy increase, until there is social and cultural change in regard to attitudes towards women and sexual violence.
2.91Ms Iles from Violet Co Legal and Consulting stated that improvements to sexual consent laws and the national harmonisation of affirmative consent is a ‘no brainer’ but ‘not the main game’. While there is a need for law reform, she considered that the emphasis must be upon enforcement:
…deeds, not words. We must quickly fix these words in legislation...Wethen need the deeds. We must address the gap in what the law says and what our community expects and what the justice system—in particular, the police and the courts—actually do in practice. What use are laws when they are not enforced?
2.92Other submitters contended that, in addition to societal and cultural changes, legislative reform must be complemented by a victim-survivor centred response within the healthcare, criminal justice and education sectors. For example, the Youth Affairs Council of South Australia, which represents young people, identified some areas in which, it argued, better responses are required, including the investigation and prosecution of sexual assault complaints (see Chapter 3).
2.93Ms Tosca Looby observed:
…cultural change is going to lead to so many other changes. That includes cultural changes in the courts and in the parliament and in all those places where, I guess, people are going to be heard. When they are, they are not getting the reception they should. I think we need to so desperately address that cultural issue.
Law in practice
2.94Dr Julia Quilter and Dr Luke McNamara articulated what their legal research has revealed to be a common problem:
…the reality that whatever laws are ‘on the books’, there is a documented problem with the incapacity of law reform to positively transform the practices of the law…[P]rogressive statutory changes are repeatedly undermined by what happens in practice in courtrooms.
2.95Dr Antolak-Saper concurred, submitting that ‘there is an ongoing disconnect between the way in which the offences, jury directions, and evidentiary provisions are articulated and the way in which they are applied in practice’.
2.96Dr Quilter and Dr McNamara elaborated on their argument, including with the observation that cross-examination lines are regularly contrary to express legislation relevant to the proof of non-consent (such as paragraph 36AA(a) of the Crimes Act 1958 (Vic), the vitiating factor that a person has not said or done anything to indicate consent to the sexual activity).
2.97Dr Quilter and Dr McNamara suggested that ‘legislative change needs to be activated in trials’:
For example, where defence cross-examination elicits evidence that the complainant said or did nothing…the prosecution should submit to the judge that the jury should be directed that there is no dispute that non‑consent has been proven. If this begins to occur, provisions like [paragraph 36AA(a)] of the Crimes Act 1958 (Vic) will finally (belatedly) have their intended effect.
2.98Dr Quilter and Dr McNamara concluded that ‘the operation of consent laws needs to be contextualised and assessed in conjunction with other evidence laws (and practices) that may exacerbate rape myths and undermine progressive law reform in relation to consent’.
2.99Overall, submitters found it difficult to comment on the operation of sexual consent laws that have only recently been enacted. The National Women’s Safety Alliance and Teach Us Consent noted, however, that in two jurisdictions—NSW and the ACT—early indications are that the legislative changes are not translating to better outcomes:
Feedback from Alliance members who provide advocacy support for survivors of sexual assault in these jurisdictions, have reported that while ‘the legislation is arguably better, the expectations of survivors have still not been met by improvements in conviction rates or handling’. In NSW, latest crime data shows reports of sexual assaults continue to trend upwards. Intrial practice, there is not yet enough information from the emerging case law in either the ACT or NSW, to determine how defence counsels will represent against the provisions at 67(5) and 61HK(2),respectively, and whether it becomes, effectively, a ‘box ticking exercise’ of steps taken to determine consent. Furthermore, it remains to be seen how these reforms will impact on jury directions and deliberations, as it has been found that juries in rape trials are often influenced by non-legal factors such as likeability of witnesses.