Chapter 1Introduction and context
Introduction
1.1At the outset, the Senate Legal and Constitutional Affairs References Committee (the committee) wishes to express its deep gratitude and respect for the victim‑survivors who shared their stories with us. Their willingness to share their experiences, and the courage and generosity of spirit they demonstrated in doing so, was both inspiring and invaluable to the work of the inquiry. Theimpact of their evidence on committee members was profound and will be long‑lasting. The committee gives its heartfelt thanks to them.
1.2That some victim-survivors are motivated by the abuse and trauma they experienced to advocate for others who have been similarly affected is both humbling and inspiring. Their advocacy makes a profound difference to the lives of countless people, including people they do not and will never know. Their courage, resilience and selflessness are extraordinary. The evidence they provided had a material impact on formulating the recommendations in this report. Again, the committee gives its heartfelt thanks to them.
Referral and terms of reference
1.3On 29 November 2022, the Senate referred the following matter to the committee for inquiry and report by 30 June 2023:
Current and proposed sexual consent laws in Australia, with particular reference to:
a. inconsistencies in consent laws across different jurisdictions;
b. the operation of consent laws in each jurisdiction;
c. any benefits of national harmonisation;
d. how consent laws impact survivor experience of the justice system;
e. the efficacy of jury directions about consent;
f. impact of consent laws on consent education;
g. the findings of any relevant state or territory law reform commission review or other inquiry; and
h. any other relevant matters.
1.4The Senate granted the committee three extensions of time to report, first from 30June 2023 to 9August 2023, then from 9 August 2023 to 13 September 2023, and finally, from 13 September 2023 to 14 September 2023.
Conduct of the inquiry and acknowledgement
1.5In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to numerous individuals and organisations, inviting submissions by 2 March 2023. This date was twice extended, with submissions ultimately due by 31 March 2023. To assist submitters, the committee published a Discussion Paper on 31 January 2023.
1.6The committee received 79 submissions, which are listed at Appendix 1, and held public hearings in Canberra on 25 July 2023, Melbourne on 26 July 2023 and Sydney on 27 July 2023, and an in-camera hearing in Brisbane on 22 August 2023. A list of the witnesses who appeared at the hearings is at Appendix 2.
1.7The committee wishes to thank the individuals and organisations who made submissions and who gave evidence at the public hearings. The committee also thanks MsJess Hill, Ms Tosca Looby, the Special Broadcasting Service (SBS) and Screen Australia who contextualised these experiences with the presentation of a curated screening of the documentary, Asking for it.
Note on terminology
1.8This report uses the term ‘victim-survivor’ to refer to those people who have experienced or are experiencing sexual assault. The committee recognises that not everyone identifies with this term. This report may also intermittently use the terminology presented in submissions and in evidence.
Scope of this report
1.9The term ‘consent laws’ encompasses a range of provisions, for example: thelegal definition of ‘consent’; the age of consent; and penalties for sexual offences. This report focuses on the legal definition of ‘consent’ and its associated provisions.
Background and context
1.10It cannot be ignored that this inquiry engages with some unpalatable and, at times, shocking realities about sexual violence in Australia. These unpalatable realities are borne out in research, such as the experiences of young people outlined in La Trobe University’s National Survey of Secondary Students and Sexual Health, and typified by ‘rape myths’ and misconceptions, which pervade Australian society, including our criminal justice system.
1.11‘Rapemyths’arewidelyheld-butincorrect-viewsaboutrape, victim‑survivors and perpetrators.
Figure 1.1 Common rape myths and misconceptions (sample)
Source: Compiled by the secretariat
1.12Sexual violence is not a new phenomenon. However, in recent years, international and national events have led to an increased focus on sexual violence against women. In Australia, in the context of a number of high-profile cases, and aided by the work of outspoken advocates, a groundswell of community sentiment became a crucible for change.
1.13With the media comprehensively covering high-profile cases, Australians began to have conversations about sexual assault and the meaning of ‘consent’, without which a sexual activity becomes an unlawful criminal act.
1.14In this context, on 29 November 2022, Labor Senator, and Deputy Chair of this committee, Nita Green moved a notice of motion leading to the referral of the current inquiry. Victim-survivors responded to the call for submissions and invitations to give evidence, clearly demonstrating that governments must do more to protect women and men from sexual assault:
In my early twenties, I was a victim of a violent sexual assault, I was not the perpetrator’s first victim. The sexual assault caused physical and psychological harm which I am still receiving counselling for. I attempted to end my life following the assault, and suffer with [Post Traumatic Stress Disorder] as a result. Theincident has left me with significant trauma, however it was the legal process that I have spent the last year recovering from, not from the crime.
I was raped by someone I trusted. We had been dating for only a month…Looking back now, I see the warning signs that I didn't see at the time…I am not a weak or unintelligent person. I'm a professional…Yet I was raped after a sober sushi dinner with a man that I was keen on. How did this happen? I wasn't walking drunk or drugged down a dark alley. I was supposed to be in a safe place.
1.15Submitters and witnesses remarked repeatedly that while legal reform and education are significant parts of the solution, transformative change to entrenched and pervasive views about respectful relationships and sexual consent will require a whole of society response.
Criminal law responsibilities and frameworks
1.16The Australian Constitution sets out the powers of the federal Parliament, including the matters for which the Commonwealth has responsibility and can make laws. Except for matters falling within the purview of the Commonwealth, the criminal law falls within the jurisdiction of the states and territories. Consequently, each jurisdiction has its own criminal law system.
1.17Since 2022, several jurisdictions have reformed, orare reforming, their criminal law legislation to better reflect the gravity and complexity of sexual offending, and its impacts on victim-survivors.
1.18In relation to the definition of ‘consent’, there are common features among the various Acts and Codes. One notable feature is the affirmative consent provisions, which exist in four jurisdictions (New South Wales, Victoria, the Australian Capital Territory, and Tasmania) and which are under consideration in other states and the Northern Territory.
1.19Australia’s National Research Organisation for Women’s Safety (ANROWS) provided the following useful description of the affirmative consent model, which has been adopted throughout this report:
The affirmative consent model requires individuals to communicate their consent and to take steps to ensure that the other person is also consenting. The model reflects that consent is an ongoing process and must be present for every sexual act. This marks a shift away from a "no means no" model of consent whereby silence can be interpreted as consent. This is important, asvictims and survivors may experience the "freeze" response in non‑consensual situations and be unable to verbally communicate that they are not consenting.
1.20Mr Nathan MacDonald, Deputy Director of Policy at the Law Council of Australia, explained that the affirmative consent model and the communicative consent model are similar in that they both require ‘positive consent…communicated between parties’. The difference between the two models is that affirmative consent has an extra element of requiring an accused to demonstrate that they said or did something to ensure that there was consent.
Prevalence of sexual assault
1.21In 2020, the Australian Institute of Health and Welfare (AIHW) reported that sexual assault is a major health and welfare issue in Australia, with many victim‑survivors experiencing broad and long-term effects. These effects include physical injuries, mental health impacts, and disruption to everyday activities (such as eating and sleeping habits).
1.22Women and men who experience sexual assault often find it difficult to discuss this experience. Ms Tosca Looby, Creative Director for Northern Pictures, found that, in making her documentary:
So many people were telling us their stories off the record and not being able to speak out more publicly than that about what had happened to them…[T]here were so many people who got quite a long way with us in terms of telling their stories and then, for all sorts of reasons that we certainly respect, they had to stop.
1.23Ms Jess Hill, Presenter and Consultant Producer for Northern Pictures and the SBS, noted that, although a national conversation has begun, cultural inhibitions continue to prevent men from participating comfortably in that conversation:
There is almost a taboo around young men talking about sexual violence both as people who have been victimised but also as people who have perpetrated it. That's something culturally that we really need to address…It's a real risk…that we end up stoking male resentment by not welcoming them into the conversation.
1.24According to the Australian Bureau of Statistics (ABS) 2021–22 Personal Safety Survey, an estimated 2.8 million people aged 18 years and over (14 per cent of the adult population) have experienced sexual violence (assault and/or threat) since the age of 15. One in five women (two million) had experienced sexual assault and one in 20 men (438 800) had experienced sexual assault.
1.25The Australian Longitudinal Study on Women’s Health suggested, however, that there is a much higher prevalence of sexual violence against women than has been reported. TheNational Association of Services Against Sexual Violence supported this view: ‘sexual violence is much more common than previously thought’.
1.26Ms Padma Raman, Chief Executive Officer of ANROWS, referenced one of its recent research reports, which found:
…the lifetime prevalence of sexual violence amongst women is shocking. This research indicated that 51 per cent of women in their 20s had experienced sexual violence and that 34 per cent of women in their 40s and 26 per cent of women aged 68 to 73 had experienced sexual violence. These rates were higher for women with disability or illness.
1.27From the ABS 2016 Personal Safety Survey, and subject to the limitations of that data, the AIHW also presented information indicating that certain populations are more likely to experience sexual assault: the homeless, people with disability or long-term health conditions, people who identify as LGBTIQA+, First Nations people, and people from CALD communities.
Standing Council of Attorneys-General
1.28On 12 August 2022, the Standing Council of Attorneys-General (SCAG, formerly the Meeting of Attorneys-General) endorsed the Meeting of Attorneys-General Work Plan to Strengthen Criminal Justice Responses to Sexual Assault 2022–27 (theSCAG Work Plan).
1.29Under the SCAG Work Plan, each jurisdiction agreed to take collective and individual action to improve the experiences of victim‑survivors of sexual assault in the criminal justice system. The plan identified the following three priority areas:
1. strengthening legal frameworks to ensure victim-survivors have improved justice outcomes and protections, wherever necessary and appropriate, across Australia
2. building justice sector capability to better support and protect victim‑survivors
3. supporting research and greater collaboration to identify best practices, and to ensure actions are supported by a sound and robust evidence base.
1.30In relation to Priority 1: Legal Frameworks, the workplan identified as a short to medium term initiative (one to three years) a review and possible reform options for the criminal law relating to sexual offences:
1.1 Criminal laws: Review the criminal offences and legal definitions (including consent) relating to sexual offending in the context of the unique characteristics of each jurisdiction’s legislative framework and criminal justice system and, if necessary, consider progressing and implementing appropriate reforms.
1.31Immediately following SCAG’s August 2022 meeting, the federal Attorney‑General, the Hon Mark Dreyfus KC MP, announced that work would begin on Initiative 1.1:
The Attorney-General’s Department [AGD] and the Australian Institute of Criminology [AIC] will review the definitions of consent, as well as broader definitions relating to sexual assault and child sexual abuse. This will include legislation with respect to consent and stealthing, which has been the subject of recent calls for reform from advocates.
1.32The AGD advised that this review is analysing legislation across Australia to identify any gaps and inconsistencies, and is examining any implications of those gaps or substantive inconsistencies, while additionally exploring best practice approaches.
1.33As at the time of writing, the AIC national review is in its final stages. An interim report has been provided to the SCAG officials-level National Working Group on Criminal Justice Responses to Sexual Assault and relevant Commonwealth agencies, for feedback in early August 2023. A final report is expected to be published in December 2023, subject to editing processes.
1.34In submissions to the inquiry, several state and territory governments reiterated their commitment and support for the objectives of the SCAG Work Plan. TheAGD noted:
While legislation and legal frameworks relating to sexual violence are predominantly the responsibility of states and territories, the scale and severity of sexual violence makes consideration of laws and the improvement of criminal justice responses to sexual assault a national priority.
Structure of the report
1.35This report comprises five chapters, as follows:
Chapter 1 provides an introduction, background and context to the inquiry;
Chapter 2 discusses the similarities and differences in Australia’s sexual consent laws, the case for and against the national harmonisation of these laws, and the limitations of law reform in this area;
Chapter 3 examines police responses to reports of sexual assault and victim‑survivors’ experiences within the criminal justice system;
Chapter 4 discusses the need for improved consent education in primary and secondary schools, tertiary settings and the Australian community; and
Chapter 5 sets out the committee’s findings and recommendations.
Note on references
1.36In this report, references to the CommitteeHansard transcript are to proof (uncorrected) transcripts. Page numbers may vary between the proof and official (corrected) transcripts.