Common sense consent reforms closer to becoming NSW law

Last published on 20 Oct 2021 

Common sense reforms to make sexual consent laws easier to follow and ensure more effective prosecutions of sexual offences will be introduced to NSW Parliament today.

Attorney General and Minister for Prevention of Domestic and Sexual Violence Mark Speakman said the proposed Bill will reinforce the basic principle of common decency that consent is a free choice involving mutual and ongoing communication, and that consent should not be presumed.

“Today brings us another step closer to implementing these important reforms that will set clearer boundaries for consensual sex and better support victim-survivors who courageously come forward to report sexual assault,” Mr Speakman said.

“If you want to have sex with someone, then you need to do or say something to find out if they want to have sex with you too – under our reforms, it’s that simple.

“We have listened to calls for change and consulted on these reforms with victim-survivors and legal experts to introduce the best possible Bill to Parliament that will simplify our laws and help to address rates of sexual violence.”

The Bill builds on legislative drafting suggested as part of the NSW Law Reform Commission (LRC) Report 148, and will also make clear that a person doesn't consent to sexual activity unless they said or did something to communicate consent.

An accused's belief that consent existed will not be reasonable in the circumstances unless the accused said or did anything – within a reasonable time before or at the time of the sexual activity – to find out whether the other person consents to the sexual activity. This requirement will not apply to an accused person who had a cognitive or mental health impairment that caused them not to say or do anything to ascertain consent.

“This affirmative model of consent is not onerous. It does not require a written or video agreement or a script, or stifle spontaneity, as some have suggested,” Mr Speakman said.

Survivor Advocate and Director from Rape & Sexual Assault Research & Advocacy, Saxon Mullins, said today was a momentous win for victim-survivors and experts who’ve contributed to this cause for years, using their voices to advocate for an affirmative consent model.

“These reforms mean so much to so many survivors who understand first hand the difference this bill can make,” Ms Mullins said.

“It has been three years since I came forward to share my own story, and while progress can feel slow, I know this bill is a huge leap forward and will see NSW leading the way in consent law around the country.”

NSW Police Commissioner Mick Fuller said a clear definition of consent was vital when dealing with sexual assault matters, to ensure effective prosecutions.

“Victims of sexual assault who courageously come forward need to know that they are fully supported – both at the investigative stage but also through the judicial process,” Commissioner Fuller said.

“Reforms which provide clarity in a legal sense about consent are welcomed by police. As a frontline agency that often sees the devastating impact of these crimes first hand, I fully support the Government’s reforms to consent laws which will improve victim outcomes and boost confidence in the judicial process.”

Minister for Education Sarah Mitchell said that all school sectors were committed to tackling the issues of consent and sexual assault, demonstrated through a shared Statement of Intent to deliver greater engagement with students, staff, police and parents.

“Schools and parents can play a powerful role in supporting these reforms and helping to promote greater communication between young people, around the dinner table, and at school about consent and healthy relationships,” Ms Mitchell said.

“We’ve improved resources in the classroom for teachers and students, and supports for parents and carers to build greater understanding of these critical issues.”

The full suite of reforms also includes:

• clarification that a person does not consent unless, at the time of the sexual activity, they freely and voluntarily agree to the sexual activity;
• five new jury directions available for judges to give at trial to address common misconceptions about sexual assault and behavioural responses, and to ensure the evidence of complainants is assessed fairly;
• targeted education programs for judges, legal practitioners and police;
• a research project to improve our understanding of victim-survivor experiences with the criminal justice process; and
• community awareness campaigns that will build on the success of #MakeNoDoubt.

A Bill to give effect to the reforms will be introduced to NSW Parliament today. The reforms are then expected to become law in mid-2022. Once the Bill has been introduced in NSW Parliament, you can read more about it here.

If you or someone you know has experienced sexual assault, support is available from those who are trained to help: call 1800RESPECT on 1800 737 732 or NSW Rape Crisis on 1800 424 017.

Download Media Release: Common sense consent reforms closer to becoming NSW law (PDF , 356.7 KB)