Crimes (Consent) Amendment Bill 2021 - Draft Exposure and public comment

6 October 2021

Crimes (Consent) Amendment Bill 2021 - Update

On 21 June 2021 I released for public comment a Draft Exposure of the Crimes (Consent) Amendment Bill (the Bill). 

The purpose of the Bill is to update the Crimes Act 1900 to align with contemporary community understandings and expectations of consensual sexual activity. 

The amendments shift the current 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 what it is not, introducing a communicative model of consent. 

 

I intend to table the Bill in the ACTs Legislative Assembly as soon as practicable and, hopefully, by the end of this calendar year. 

It will then be referred to the Assembly’s Standing Committee on Justice and Community Safety (Scrutiny Committee), as per the Assembly’s regular process for the introduction of amended legislation.  

The Bill may also be referred to a Select Committee. If this occurs, it is likely the Select Committee may conduct a public inquiry, seeking further stakeholder and community input.  

The Committee/s will provide a report back to the Assembly, at which time the Bill will be debated by all members of the Assembly before a vote is conducted as to whether to pass the Bill and enact the new laws. 

 

The Bill:  

  1. outlines the principles of consent – consent is not to be presumed; every person has a right to choose whether or not to participate in a sexual act, and it involves ongoing and mutual communication and decision-making between the people participating; 
  1. provides a meaning of consent – free, voluntary and informed agreement; and saying and/or doing something to communicate agreement to the act; 
  1. 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. It changes the nuance of this set of circumstances to ensure that consent is something that is unassumed and must be given; and 
  1. introduces 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, community standard. In cases where an accused person does or says 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. 

The proposed legislative changes will provide greater clarity and awareness about the principles, meaning and definition of consent. The changes are, ultimately, intended to better protect the community and ensure that it is absolutely clear that a person must – through free, voluntary and informed agreement – communicate their consent, either verbally or non-verbally, in relation to a sexual act.  

The proposed legislative changes are not complex – a person must communicate their agreement to participate in a sexual act.    

A strong criminal justice response to sexual offending is important not just for victim-survivors but also for the entire community. 

The Bill makes separate provisions for the distinct elements of the principles and meaning of consent, the definition of consent, and the matters which a trier of fact must apply in determining an accused person’s knowledge or recklessness about consent, and whether there was reasonable belief that consent had been given.  

These reforms will be complimented by strong community education and awareness. The ACT Government’s Sexual Assault Prevention and Response Program is providing a collaborative and holistic approach to law reform, community education, victim-survivor supports and workplace culture. 

Summary of public comments 

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 July.  

I wish to thank everyone who engaged with this process, and who took the time to provide comments, feedback and insights. This has been invaluable in further shaping the Bill to make sure we get it right. 

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 am continuing to work with the ACT Government’s Sexual Assault Prevention and Response working group on Law Reform and am awaiting detailed further feedback from this group. In the meantime, I am continuing to work closely with the Parliamentary Counsel’s Office since the close of public consultation to prepare the further amendments necessary to ensure the Bill meets its intended objectives.  

These changes are 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. 

 

 

 

21 June 2021

A new model of consent for sexual activity - based on free and voluntary agreement – is being considered for enactment into ACT law.

The ACT community and stakeholders have requested law reform to introduce a communicative model of consent in the ACT.

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

The proposed amendments would shift the current 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 is available for public comment until COB Friday 16 July.

The Bill:

  1. outlines 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. provides 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. introduces 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 have undertaken 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 have taken 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’m proposing 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. 

The proposed changes provide a clear definition that – where a person does not say or do something to communicate consent (verbally or non-verbally), or if a person withdraws consent – this is not consent.

The proposed changes also introduce a new test for the prosecution of an accused person, whereby their belief that consent was given must be deemed to be reasonable in the circumstances.

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

I welcome input and comment on the Exposure Draft of the Bill by COB Friday 16 July.

Following the close of public consultation, I will review and analyse all comments provided and make any edits or revisions, as appropriate, before the Bill’s finalisation and introduction to the Assembly. I anticipate this will occur later this year. 

 

This work will have input from, and be 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. The program has been established by Ms Yvette Berry MLA, Minister for Women.

 

You can view the following documents here:

 

Comments and feedback can be made through:

Comments won't be made public.

 

Speeches:

  • 30 Nov 2021 - Adjournment speech: Update on the Crimes (Consent) Amendment Bill 2021 

Media Release

News articles:

 

Support

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