It was clear that the ACT community and stakeholders wanted law reform to introduce a communicative model of consent in the ACT.

In turn, I developed a draft Bill to respond to those requests and concerns, amending the ACTs Crimes Act 1900.

The proposed amendments would shift the legislation from the point of sexual assault being a violent act, to a much more nuanced and defined set of parameters around what consent is and is not, in line with contemporary community expectations.

An Exposure Draft of the Bill was available for public comment until COB 16/07/21.

The draft:

1. Outlined the principles of consent – every person has a right to choose whether or not to participate in a sexual act, and it involves ongoing and mutual communication, decision-making and free and voluntary agreement between the people participating;
   
   
2. Provided a meaning of consent – freely and voluntarily saying or doing something to communicate agreement to the act, at the time of the act;
   
   
3. Clearly articulates a set of circumstances under which consent is not deemed given. This is a non-exhaustive list that has been updated from the current Crimes Act 1900; and
   
   
4. Introduced the concept of reasonable belief – the current legislation provides that an accused person is guilty of an offence if they know another person does not consent to a sexual act, or are reckless as to consent. These are subjective standards. This Bill will introduce the principle that any belief an accused person may hold about another person’s consent must be reasonable under all the circumstances, according to an objective standard. In cases where an accused person does nothing to ascertain another person’s consent, they will not be able to rely on a defence of genuinely but mistakenly having believed the other person consented.

In 2018, similar amendments were considered by the ACT Government, with an Inquiry held by the Standing Committee on Justice and Community Safety.

I undertook a detailed review of each of the submissions made by a wide range of stakeholders in 2018, and the ACT Government’s response to the Inquiry. In proposing legislative amendments for the ACT, I took these views into account, as well as the NSW Law Reform Commission’s Report ‘Consent in relation to sexual offences’ and relevant legislation in other jurisdictions.

I proposed to introduce a communicative model of consent whereby the principle, meaning and definition of consent is shifted – from something that is presumed and can be negated, to something that is unassumed and must be given. 

I believed that the proposed legislative changes, which would bring the ACT in line with other Australian jurisdictions including Tasmania and Victoria, would provide greater protection and justice for victim-survivors of sexual assault, as well as helping prevent incidents of sexual assault in the ACT.

This work had input from, and was overseen by the ACT Government’s Sexual Assault Prevention and Response Program, particularly the Law Reform Working Group, to ensure coordination in the broader context of cultural and educative change across all groups within our community.

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During the four-week period of public consultation, 14 groups or individuals provided written comments by letter or email, and there was strong public engagement through social media channels. I met with many key stakeholder groups and individuals and presented to the ACT Government’s Sexual Assault Prevention and Response Law Reform Working Group on 21/07/21.

There was overwhelming support for sexual consent law reform.  

However, there were mixed views about the introduction of a communicative model of consent, and the introduction of a hybrid subjective-objective test through the a ‘reasonable belief’ fault clause.  

I have summarised key comments below, and my response to each, including an outline of further amendments that are likely to be made to the Bill and/or Explanatory Statement resulting from the feedback received. 

I continued to work with the ACT Government’s Sexual Assault Prevention and Response working group on Law Reform and was awaiting detailed further feedback from this group. In the meantime, I continued to work closely with the Parliamentary Counsel’s Office to prepare the further amendments necessary to ensure the Bill met its intended objectives.  

These changes were anticipated, pending further comment from the Law Reform Working Group, to include: 

• Refinement of the principles and meaning of consent – the intent has not changed; 
  
  
• Recognition that consent may be provided through supported decision making, especially for people with a disability; 
  
  
• Removal of the term ‘overborne’ throughout the provisions set out at section 67 (1); 
  
  
• Amended wording at sections 67(1) (h) and (i);
   
• Clarification that the circumstance set out at section 67 (1) (j) relates to the abuse of a professional relationship; 
  
  
• Inclusion of ‘recklessness’ as a fault element at section 67 (3); and
  
  
• Minor, consequential amendments of an editorial or technical nature. 

I delivered a speech to the Legislative Assembly to provide an update on progress.

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I tabled the Crimes (Consent) Amendment Bill 2022 in the ACT Legislative Assembly on 8 February 2022.

There had been significant progress on several fronts since the release of my draft exposure bill: 

• The ACT's Sexual Assault Prevention and Response Reform Program Steering Committee presented their report to the ACT Government on 6 December 2021; 
  
  
• The Crimes Legislation Amendment (Sexual Consent Reforms) Bill 2021 was passed in New South Wales; 
  
  
• Victoria announced its intent to introduce affirmative consent legislation in 2022; and 
  
  
• The ACTs Crimes (Stealthing) Amendment Act 2021 was passed on 14 October 2021. 

Together with the period of public comment and stakeholder consultation on the draft exposure Bill, I was able to draw from this significant body of work to refine and strengthen the Crimes (Consent) Amendment Bill 2022 to table in the ACT Legislative Assembly. 

Encouragingly, the Bill I released as a draft exposure for public consultation in June 2021 was well received and did not require significant amendment.

The next steps would include review by the Assembly's Standing Committee on Justice and Comunity (Scrutiny) Committee, consideration of JACS as to whether to hold a public inquiry, and a report by the ACT Government to the Assembly.

The JACS Committee ultimately decided it was not necessary to hold a public inquiry.

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On 5 May 2022 my Crimes (Consent) Amendment Bill 2022 was debated in the Assembly and introduced a communicative model of consent in the ACT. 

After supportive speeches from Minister Yvette Berry on behalf of ACT Labor, Minister Shane Rattenbury on behalf of the ACT Greens, and Opposition Leader Elizabeth Lee, the bill (with minor amendments moved by myself) was passed through the Assembly with tri-patisan support.

I thank the many organisations, stakeholder groups and individuals who contributed and supported the progress of these reforms.

If you or anyone you know needs support, please contact the National Sexual Assault, Domestic and Family Violence Counselling Service on 1800 RESPECT (1800 737 732), available 24 hours or via online chat service at https://www.1800respect.org.au/   

Domestic Violence Crisis Service ACT Ph 62 800 900, 24/7 crisis line   

Canberra Rape Crisis Centre Ph 6247 2525, 7 days a week, 7:00am to 11:00pm   

ACT Human Rights Commission Victim Support ACT Ph 6205 2222 Mon-Fri, 9:00am to 5:00pm.   

Women's Legal Centre ACT Ph 6257 4377, Mon-Fri, 9:00am to 5:00pm.   

1800RESPECT (1800 737 732), 24 hours, 7 days a week, for those impacted by sexual or domestic violence   

Legal Aid ACT Helpline Ph 1300 654 314, Mon-Fri, 8:30am to 4.30pm  

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