Law Updates

By Phoebe Logan


Overhaul of NSW Sexual Consent Laws

On Tuesday 25 May 2021, New South Wales Attorney-General, Mark Speakman, announced changes that will be made to the state’s consent laws.  The new laws have already sparked the ire of the legal profession.

The reforms to the laws have come about following the release of the recommendations made in the NSW Law Reform Commission (LRC) Report 148 in November 2020. The extensive community research for the report has taken over 2 years, with over 3,900 people accessing the online survey. The 44 recommendations from the report have been supported by the Government. The reforms also include 5 new directions available for judges to provide to the jury at trial, in order to address common misconceptions about consent.

The Bill to bring these changes into effect will be introduced in the New South Wales Parliament later this year.

The key reforms announced in the New South Wales Government press release:

  • A person does not consent to sexual activity unless they said or did something to communicate consent, and
  • An accused person’s belief in consent will not be reasonable in the circumstances unless they said or did something to ascertain consent.

The current legislation that regards consent in relation to sexual offences can be found in Section 61HE of the Crimes Act 1900 (NSW). This section of the Act defines consent as “A person “consents” to a sexual activity if the person freely and voluntarily agrees to the sexual activity”.

Mr Speakman explained that the changes included that a person must “say something” or give a “facial expression or physical gesture” to provide consent. The Government indicated that they would not prescribe the various ways people could communicate these forms of consent and that common sense must be used to derive this.

Unsurprisingly, the introduction of the reforms has not been supported by many members of the legal industry in New South Wales, including the Law Society and Bar Association.

Both organisations have expressed their concerns about the about the reforms and the possible implications they could create. Bar Association President, Michael McHugh SC, gave an example of this in a statement released on 25 May 2021 noting:

“The Attorney General’s proposals would have the effect that, even in situations where a person consents to sexual activity but has not communicated that consent by words or actions at that time, the law would hold that there was no consent. This approach would potentially criminalise many consensual sexual relations.”

The NSW Bar Association concluded the press release by stating:

“The New South Wales Bar Association calls upon the Government to reconsider the implications of this ill­considered proposal, which goes beyond the model recommended by the New South Wales Law Reform Commission in its recent report.”

You can read the full statement here.

If the New South Wales Bar Association is showing such disapproval and deep concern about the reforms being implemented, the question arises of whether these laws could be more detrimental to the criminal justice system than beneficial.  They will certainly do little to make the complicated area of the criminal law, that is consent, easier to navigate.

The reforms show similarities to the communicative models for consent already implemented in Tasmania and Victoria. Should these reforms be successful, it will be interesting to observe whether the ACT or any other states in Australia follow suit and consider adopting similar reforms.