22 June 2021
Thank you Madame Speaker.
I wish to talk about a Draft Exposure Bill I released publicly yesterday – the Crimes (Consent) Amendment Bill 2021.
This is an important law reform regarding sexual consent.
This Bill introduces a communicative model of consent in the ACT – something our community and stakeholders have been calling for.
I commend Ms Berry, as Minister for Women, in her establishment of the ACTs tri-partisan, collaborative and coordinated Sexual Assault Prevention and Response Program.
Law Reform is one of three important components of this program, the other two being Prevention and Response. The program will include a specific and dedicated focus on cultural change, community education and awareness across three working groups.
The purpose of the proposed legislative amendments is to introduce a new statutory definition of consent in line with contemporary community standards and expectations – one that is based on free and voluntary agreement.
The amended definition brings about a more nuanced definition of consent, shifting it from the position of non-consensual sexual activity being something that is presumed and can be negated, to something that is unassumed and must be given.
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 is not.
The Bill 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.
The Bill provides a definition of consent – that is, freely and voluntarily saying or doing something to communicate agreement to the act, at the time of the act.
The Bill 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 rather than something that is presumed and may be negated.
Lastly the Bill introduces the concept of reasonable belief – Our 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.
Ultimately, these changes are about cultural and behavioural change. They create clarity for a common-sense approach to respectful relationships.
Sexual assault is a notoriously under reported and under convicted crime.
National statistics suggest a 3% conviction rate – this is incredibly low for a crime that has life-long impacts on survivors. For years there have been calls for reform in how we address sexual assault in our community.
And this draft legislation released today, goes a long way in strengthening and simplifying consent in the law, and ultimately it is intended that we will see and increase in perpetrators brought to justice.
I welcome comments on the Exposure Draft until COB Friday 16 July. Comments can be made via my website, by email or phone.
I intend to table the Bill in the Assembly in coming months.