The meaning of consent under NSW sexual assault laws will likely be modernised and simplified, according to a series of draft proposals published by the NSW Law Reform Commission ahead of its final review into the legislation.
The NSW Law Reform Commission has been examining the issue of consent in sexual offences and the operation of s 61HE of the Crimes Act 1900 (NSW) since a review was commissioned by the Berejilkian government in May last year.
Much of the debate has been centred on whether Australia could adopt an affirmative model of consent like that which exists in Tasmania and Victoria, and how that would be applied in the courtroom. In these states, if a person does not say or do anything to communicate consent, the law assumes consent has not been given.
The Commission released draft proposals ahead of its final recommendations to the NSW Government and sought feedback. This is unusual, but was considered necessary due to the complexity, and often controversial, debate around consent.
“We propose changes to the structure and language of the relevant provisions of the Crimes Act 1900 (NSW),” the Commission said in its draft proposals document.
The proposed new interpretive principles of s 61HE include that “a person’s consent should not be presumed” and “sexual activity should involve ongoing and mutual communication, decision-making and free and voluntary agreement.”
Several submissions told the Commission the current law does not go far enough. Many have also warned that the criminal law cannot be the sole mechanism to change attitudes about sexual assault.
“Law reform, on its own, will not resolve all of the substantive issues,” Women’s Safety NSW, a specialist peak body for women’s safety from domestic violence, wrote in its November 2019 submission to the Commission.
“To achieve real change, we also need specialisation, reforms to court procedure, increased support for victim-survivors and substantial investment in cultural and attitudinal change.”
In its February 2019 submission, the Law Society of NSW argued the current definition of consent “appropriately balances the rights of an accused, consistent with the seriousness of the offence, as well as consideration of the complainant”.
The Commission has received 36 written submissions to its consultation paper and more than 1800 responses to an online survey. It is expected to present its final report and recommendations to NSW Attorney-General Mark Speakman next year.